CHAPTER 39-01 Definitions and General Provisions

39-01-01. Definitions. [Effective through August 31, 2022]

In this title, unless the context or subject matter otherwise requires:

  1. “"Appropriate licensed addiction treatment program" means an addiction treatment program conducted by an addiction facility licensed by the department of human services or conducted by a licensed individual specifically trained in addiction treatment
  2. “Authorized emergency vehicles”:
    1. “Class A” authorized emergency vehicles means:
      1. Vehicles of a governmentally owned fire department.
      2. Vehicles when operated by or under the control of a police officer having authority to enforce the provisions of this title or by a salaried employee of a municipal police department within the municipality or by a sheriff or deputy sheriff not including special deputy sheriffs, or by the director of the department of corrections and rehabilitation and the director’s authorized agents who have successfully completed training in the operation of class A authorized emergency vehicles.
      3. Vehicles clearly identifiable as property of the department of corrections and rehabilitation when operated or under the control of the director of the department of corrections and rehabilitation.
      4. Ambulances and other vehicles authorized by licensure granted under chapter 23-27.
      5. Vehicles operated by or under the control of the director, district deputy director, or a district deputy game warden of the game and fish department.
      6. Vehicles owned or leased by the United States and used for law enforcement purposes.
      7. Vehicles designated for the use of the adjutant general or assistant adjutant general in cases of emergency.
      8. Vehicles operated by or under the control of the director of the parks and recreation department.
      9. Vehicles operated by or under the control of a licensed railroad police officer and used for law enforcement purposes.
      10. Vehicles operated by or under the control of the state forester.
      11. Vehicles operated by or under the control of the bureau of criminal investigation and used for law enforcement purposes.
      12. Vehicles operated by or under the state department of health in cases of emergencies.
      13. Vehicles used or operated by governmental search and rescue personnel while performing emergency operations or duties. As used in this paragraph, "search and rescue" means deployment, coordination, and use of available resources and personnel in locating, relieving the distress, and preserving the life of and removing an individual who is missing, trapped, or lost in the back country, remote areas, or waters of the state. The term includes water and dive rescue.
    2. “Class B” authorized emergency vehicles means wreckers and such other emergency vehicles as are authorized by the local authorities.
    3. “Class C” authorized emergency vehicles means:
      1. Vehicles used by the state division of homeland security or local division of emergency management organizations.
      2. Vehicles used by volunteer firefighters while performing their assigned disaster and emergency responsibilities.
      3. Vehicles, other than ambulances, used by emergency medical services personnel.
      4. Vehicles used by volunteer search and rescue personnel if performing an emergency operation or duty upon the request of a state entity, political subdivision, or volunteer fire department. A volunteer organization may classify a personal vehicle as a class C emergency vehicle if needed to assist in a search and rescue operation in accordance with this paragraph. As used in this paragraph, "search and rescue" means deployment, coordination, and use of available resources and personnel in locating, relieving the distress, and preserving the life of and removing an individual who is missing, trapped, or lost in the backcountry, remote areas, or waters of the state. The term includes water and dive rescue.
  3. “Bicycle” means every device propelled solely by human power upon which any person may ride, having two tandem wheels or two parallel wheels and one forward or rearward wheel. The term includes an electric bicycle.
  4. “Bus” means every motor vehicle designed for carrying more than ten passengers and used for the transportation of persons, and every motor vehicle, other than a taxicab, designed and used for the transportation of persons for compensation. Provided, every motor vehicle designed for carrying not more than fifteen persons and used for a ridesharing arrangement, as defined in section 8-02-07, is not a “bus”.
  5. “Business district” means the territory contiguous to a highway when fifty percent or more of the frontage thereon for a distance of three hundred feet [91.44 meters] or more is occupied by buildings in use for business.
  6. “Camping trailer” means a vehicular portable unit mounted on wheels and constructed with collapsible partial side walls that fold for towing by another vehicle and unfold at the campsite to provide temporary living quarters for recreational, camping, or travel use.
  7. “Cancellation” means a license is annulled and terminated because of an error or defect or because the licensee is no longer entitled to the operator’s license, but the cancellation of a license is without prejudice and application for a new license may be made at any time after the cancellation.
  8. “Child restraint system” means a specifically designed device, built-in seating system, or belt-positioning booster that meets the federal motor vehicle safety standards and is permanently affixed to a motor vehicle, is affixed to the vehicle by a safety belt or universal attachment system, or is combined with a federally compliant safety belt system.
  9. “Commercial freighting” means the carriage of things other than passengers, for hire, except that such term does not include:
    1. The carriage of things other than passengers within the limits of the same city;
    2. Carriage by local dray lines of baggage or goods to or from a railroad station from or to places in such city or in the immediate vicinity thereof, in this state, and not to exceed two miles [3.22 kilometers] from the corporate or recognized limits of said city; or
    3. Hauling done by farmers for their neighbors in transporting agricultural products to or from market.
  10. “Commercial passenger transportation” means the carriage of passengers for hire, except that the term does not include:
    1. The carriage of passengers within the limits of a city.
    2. The carriage by local buslines of passengers to or from a railroad station from or to places within any city or within two miles [3.22 kilometers] of the limits of the city.
    3. The carriage of passengers under a ridesharing arrangement, as defined in section 8-02-07.
  11. “Commissioner” means the director of the department of transportation of this state, acting directly or through authorized agents as provided by section 24-02-01.3.
  12. “Controlled-access highway” means every highway, street, or roadway in respect to which owners or occupants of abutting lands and other persons have no legal right of access to or from the same except at such points only and in such manner as may be determined by the public authority having jurisdiction over such highway, street, or roadway.
  13. “Conviction” means a final order or judgment or conviction by the North Dakota supreme court, any lower court having jurisdiction, a tribal court, or a court in another state if an appeal is not pending and the time for filing a notice of appeal has elapsed. Subject to the filing of an appeal, the term includes:
    1. An imposed and suspended sentence;
    2. A deferred imposition of sentence under subsection 4 of section 12.1-32-02; or
    3. A forfeiture of bail or collateral deposited to secure a defendant’s appearance in court and the forfeiture has not been vacated.
  14. “Crosswalk” means that part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs, or, in the absence of curbs, from the edges of the traversable roadway; or any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by lines or other markings on the surface.
  15. “Dealer” means every person, partnership, corporation, or limited liability company engaged in the business of buying, selling, or exchanging motor vehicles, or who advertises, or holds out to the public as engaged in the buying, selling, or exchanging of motor vehicles, or who engages in the buying of motor vehicles for resale. Any person, partnership, corporation, limited liability company, or association doing business in several cities or in several locations within a city must be considered a separate dealer in each such location.
  16. “Department” means the department of transportation of this state as provided by section 24-02-01.1.
  17. “Director” means the director of the department of transportation of this state as provided by section 24-02-01.3.
  18. “Driver” means every person who drives or is in actual physical control of a vehicle.
  19. “Electric bicycle” means a bicycle equipped with fully operable pedals, a saddle or seat for the rider, and an electric motor of seven hundred fifty or fewer watts which meets the requirements of one of the following three classes:
    1. A class 1 electric bicycle if the motor provides assistance only when the individual is pedaling and the motor ceases to provide assistance when a speed of twenty miles [32 kilometers] per hour is achieved.
    2. A class 2 electric bicycle if the motor is capable of propelling the bicycle without the individual pedaling and the motor ceases to provide assistance when a speed of twenty miles [32 kilometers] per hour is achieved.
    3. A class 3 electric bicycle if the motor provides assistance only when the individual is pedaling and the motor ceases to provide assistance when a speed of twenty-eight miles [45 kilometers] per hour is achieved.
  20. “Electronic communication device” means an electronic device, including a wireless telephone, personal digital assistant, a portable or mobile computer or other device, and video display equipment. The term does not include a global positioning system or navigation system or a device that is physically or electronically integrated into the motor vehicle.
  21. “Essential parts” means all integral and body parts of a vehicle of a type required to be registered hereunder, the removal, alteration, or substitution of which would tend to conceal the identity of the vehicle or substantially alter its appearance, model, type, or mode of operation and includes all integral parts and body parts, the removal, alteration, or substitution of which will tend to conceal the identity or substantially alter the appearance of the vehicle.
  22. “Explosives” means any chemical compound or mechanical mixture that is commonly used or intended for the purpose of producing an explosion and which contains any oxidizing and combustive units or other ingredients in such proportions, quantities, or packing that an ignition by fire, by friction, by concussion, by percussion, or by detonator of any part of the compound or mixture may cause such a sudden generation of highly heated gases that the resultant gaseous pressures are capable of producing destructive effects on contiguous objects or by destroying life or limb.
  23. “Farm tractor” includes every motor vehicle designed and used primarily as a farm implement for drawing plows, moving machines, and other implements of husbandry.
  24. “Farm trailer” includes those trailers and semitrailers towed by a bona fide resident farmer hauling the farmer’s own agricultural, horticultural, dairy, and other farm products if the gross weight, not including the towing vehicle, does not exceed twenty-four thousand pounds [10886.22 kilograms].
  25. “Fifth-wheel travel trailer” means a vehicular unit mounted on wheels, designed to provide temporary living quarters for recreational, camping, or travel use, of such size or weight as not to require a special highway movement permit and designed to be towed by a motorized vehicle that contains a towing mechanism that is mounted above or forward of the tow vehicle’s rear axle.
  26. “Flammable liquid” means any liquid which has a flash point of seventy degrees Fahrenheit [21.11 degrees Celsius], or less, as determined by a tagliabue or equivalent closed-cup test device.
  27. “Foreign vehicle” means every motor vehicle which is brought into this state other than in the ordinary course of business by or through a manufacturer or dealer and which has not been registered in this state.
  28. “Gross weight” means the weight of a vehicle without load plus the weight of any load thereon.
  29. “Guest” means and includes a person who accepts a ride in any vehicle without giving compensation therefor.
  30. “Highway” means the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel and of every way privately maintained within a mobile home park, trailer park, or campground containing five or more lots for occupancy by mobile homes, travel trailers, or tents when any part thereof is open for purposes of vehicular travel.
  31. “House car” or “motor home” means a motor vehicle which has been reconstructed or manufactured primarily for private use as a temporary or recreational dwelling and having at least four of the following permanently installed systems:
    1. Cooking facilities.
    2. Icebox or mechanical refrigerator.
    3. Potable water supply including plumbing and a sink with faucet either self-contained or with connections for an external source, or both.
    4. Self-contained toilet or a toilet connected to a plumbing system with connection for external water disposal, or both.
    5. Heating or air-conditioning system, or both, separate from the vehicle engine or the vehicle engine electrical system.
    6. A 110-115 volt alternating current electrical system separate from the vehicle engine electrical system either with its own power supply or with a connection for an external source, or both, or a liquefied petroleum system and supply.
  32. “Implement of husbandry” means every vehicle designed and adapted exclusively for agricultural, horticultural, or livestock raising operations or for lifting or carrying an implement of husbandry and in either case not subject to registration if used upon the highway.
  33. “Intersection” means the area embraced within the prolongation or connection of the lateral curb lines, or, if none, then the lateral boundary lines of the roadways of two highways which join one another at, or approximately at, right angles, or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict. Where a highway includes two roadways thirty feet [9.14 meters] or more apart, then every crossing of each roadway of such divided highway by an intersecting highway must be regarded as a separate intersection. In the event such intersecting highway also includes two roadways thirty feet [9.14 meters] or more apart, then every crossing of two roadways of such highways must be regarded as a separate intersection.
  34. “Intoxicating liquor” means and includes any beverage containing alcohol.
  35. “Judgment” means any judgment which has become final by expiration without appeal of the time within which an appeal might have been perfected, or by final affirmation on appeal, rendered by a court of competent jurisdiction of any state of the United States, upon a claim for relief arising out of ownership, maintenance, or use of any motor vehicle, for damages, including damages for care and loss of services, because of bodily injury to or death of any person, or for damages because of injury to or destruction of property, including the loss of use thereof, or upon a claim for relief on an agreement of settlement for such damages.
  36. “Legal owner” means a person who holds the legal title to a vehicle.
  37. “Licensed health care provider” means doctor of medicine, doctor of osteopathy, doctor of chiropractic, optometrist, psychologist, advanced practice registered nurse, or physician assistant who is licensed, certified, or registered in accordance with laws and regulations in this or another state.
  38. “Lienholder” means a person holding a security interest in a vehicle.
  39. “Local authorities” includes every county, municipal, and other local board or body having authority to adopt local police regulations under the constitution and laws of this state.
  40. “Mail” means to deposit mail properly addressed and with postage prepaid with the United States postal service.
  41. “Manifest injustice” means a specific finding by the court that the imposition of sentence is unreasonably harsh or shocking to the conscience of a reasonable person, with due consideration of the totality of circumstances.
  42. “Manufactured home” means a structure, transportable in one or more sections, that, in the traveling mode, is eight body feet [2.44 meters] or more in width or forty body feet [12.19 meters] or more in length, or, when erected onsite, is three hundred twenty square feet [29.73 square meters] or more, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air-conditioning, and electrical systems contained therein. The term includes any structure that meets all of the requirements of this subsection except the size requirements and with respect to whether the manufacturer voluntarily files a certification required by the United States secretary of housing and urban development and complies with the standards established under title 42 of the United States Code.
  43. “Manufacturer” means any person who manufactures, assembles, or imports and sells new motor vehicles to new motor vehicle dealers for resale in the state; but such term does not include a person who assembles or specially builds interior equipment on a completed vehicle supplied by another manufacturer, distributor, or supplier.
  44. “Metal tires” includes all tires the surface of which in contact with the highway is wholly or partly of metal or other hard, nonresilient material except that this provision does not apply to pneumatic tires.
  45. “Mobile home” means a structure, either single or multisectional, which is built on a permanent chassis, ordinarily designed for human living quarters, either on a temporary or permanent basis, owned or used as a residence or place of business of the owner or occupant, which is either attached to utility services or is twenty-seven feet [8.23 meters] or more in length.
  46. “Modular unit” includes every factory fabricated transportable building unit designed to be incorporated with similar units at a building site into a modular structure to be used for residential, commercial, educational, or industrial purposes.
  47. “Motor vehicle” includes every vehicle that is self-propelled, every vehicle that is propelled by electric power obtained from overhead trolley wires, but not operated upon rails, and, for purposes of motor vehicle registration, title registration, and operator’s licenses, motorized bicycles. The term does not include a snowmobile as defined in section 39-24-01 or an electric bicycle.
  48. “Motorcycle” means every motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding implements of husbandry. The term does not include an electric bicycle.
  49. “Motorized bicycle” means a vehicle equipped with two or three wheels, foot pedals to permit muscular propulsion or footrests for use by the operator, a power source providing up to a maximum of two brake horsepower having a maximum piston or rotor displacement of 3.05 cubic inches [49.98 milliliters] if a combustion engine is used, which will propel the vehicle, unassisted, at a speed not to exceed thirty miles [48.28 kilometers] per hour on a level road surface, and a power drive system that functions directly or automatically only, not requiring clutching or shifting by the operator after the drive system is engaged, and the vehicle may not have a width greater than thirty-two inches [81.28 centimeters]. The term does not include an electric bicycle.
  50. “Motor-powered recreational vehicle” means a motorcycle, unconventional vehicle, or off-highway vehicle as defined in section 39-29-01, or a snowmobile as defined in section 39-24-01. The term does not include an electric bicycle.
  51. “Nonresident” means any person who is not a resident of this state.
  52. “Nonresident’s operating privilege” means the privilege conferred upon a nonresident by the laws of this state pertaining to the operation by such person of a motor vehicle, or the use of a vehicle owned by such person, in this state.
  53. “Official traffic-control devices” means all signs, signals, markings, and devices not inconsistent with this title placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning, or guiding traffic.
  54. “Operator” means every person who drives or is in actual physical control of a motor vehicle upon a highway or who is exercising control over or steering a vehicle being towed by a motor vehicle.
  55. “Operator’s license”, “driver’s license”, or “license to operate a motor vehicle” means any operator’s or driver’s license or any other license or permit to operate a motor vehicle issued under, or granted by, the laws of this state, including:
    1. Any temporary license or instruction permit;
    2. The privilege of any person to drive a motor vehicle whether such person holds a valid license; or
    3. Any nonresident’s operating privilege as defined in this section.
  56. “Owner” means a person, other than a lienholder, having the property in or title to a vehicle. The term includes a person entitled to the use and possession of a vehicle subject to a security interest in another person, but excludes a lessee under a lease not intended as security.
  57. “Park”, when prohibited, means the standing of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in loading or unloading.
  58. “Passenger motor vehicle” means every motor vehicle designed principally for the transportation of persons and includes vehicles which utilize a truck chassis, but have a seating capacity for four or more passengers.
  59. “Pedestrian” means any person afoot.
  60. “Person” includes every natural person, firm, copartnership, association, corporation, or limited liability company.
  61. “Pneumatic tires” includes all tires inflated with compressed air.
  62. “Pole trailer” means every vehicle without motive power designed to be drawn by another vehicle and attached to the towing vehicle by means of a reach, or pole, or by being boomed or otherwise secured to the towing vehicle, and ordinarily used for transporting long or irregularly shaped loads such as poles, pipes, or structural members capable, generally, of sustaining themselves as beams between the supporting connections.
  63. “Police officer” means every officer authorized to direct or regulate traffic or to make arrests for violations of traffic regulations.
  64. “Primary source identity document” means documentary evidence of an individual’s name, date of birth, and legal presence required in chapters 39-06 and 39-06.2 related to the issuance of permits, licenses, and nondriver photo identification cards, and retained in the driver record.
  65. “Private road or driveway” means every way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other persons.
  66. “Proof of financial responsibility” means proof of ability to respond in damages for liability, on account of accidents occurring after the effective date of the proof, arising out of the ownership, maintenance, or use of a motor vehicle, in the amount of twenty-five thousand dollars because of bodily injury to or death of one person in any one accident, and, subject to the limit for one person, in the amount of fifty thousand dollars because of bodily injury to or death of two or more persons in any one accident, and in the amount of twenty-five thousand dollars because of injury to or destruction of property of others in any one accident.
  67. “Railroad” means a carrier of persons or property upon cars, other than streetcars, operated upon stationary rails.
  68. “Railroad sign or signal” means any sign, signal, or device erected by authority of a public body or official or by a railroad and intended to give notice of the presence of railroad tracks or the approach of a railroad train.
  69. “Reconstructed vehicle” means any vehicle, of a type required to be registered, materially altered from its original construction by the removal, addition, or substitution of new or used essential parts.
  70. “Recreational vehicle” means any motorcycle not qualified for registration, off-highway vehicle, snowmobile, vessel, or personal watercraft. The term does not include an electric bicycle.
  71. “Residence district” means territory contiguous to a highway not comprising a business district, when the frontage on such highway for a distance of three hundred feet [91.44 meters] or more is occupied mainly by dwellings, or by dwellings and buildings in use for business.
  72. “Revocation” means that the operator’s license is terminated and may not be renewed or restored, except on application for a new license presented to and acted upon by the director after the expiration of the period of revocation.
  73. “Right of way” means the privilege of the immediate use of a roadway.
  74. “Road tractor” means every motor vehicle designed and used for drawing other vehicles and not so constructed as to carry any load thereon either independently or any part of the weight of a vehicle or load so drawn.
  75. “Roadway” means that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder. In the event a highway includes two or more separate roadways, the term “roadway” as used herein refers to any such roadway separately but not to all such roadways collectively.
  76. “Saddle mount” means placing the front wheels of the drawn vehicle upon the bed of the drawing vehicle.
  77. “Safety zone” means the area or space officially set aside within a highway for the exclusive use of pedestrians and which is so plainly marked or indicated by proper signs as to be plainly visible at all times while set aside as a safety zone.
  78. “Salvage certificate of title” means a document issued by the department for purposes of proof of ownership of a salvage or destroyed vehicle and not acceptable for motor vehicle registration purposes.
  79. “Schoolbus” means a motor vehicle designed or used to carry more than ten passengers in addition to the driver, and is used for the purpose of transporting preprimary, primary, or secondary school students from home to school, from school to home, or to and from school-related events. For the purposes of chapter 39-21, "schoolbus" means any motor vehicle that is owned or leased by a public or governmental agency and used to transport, preprimary, primary, or secondary school students to or from school or to or from school-related events, or is privately owned and operated for compensation to transport preprimary, primary, or secondary school students to or from school or to or from school-related events. Schoolbus does not include a bus used as a common carrier.
  80. “Semitrailer” includes every vehicle of the trailer type so designed and used in conjunction with a truck or truck tractor that some part of its own weight and that of its own load rests upon or is carried by a truck or truck tractor, except that it does not include a “housetrailer” or “mobile home”.
  81. “Sidewalk” means that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, intended for use of pedestrians.
  82. “Solid tire” includes every tire made of rubber or other resilient material other than a pneumatic tire.
  83. “Special mobile equipment” means every vehicle not designed or used primarily for the transportation of persons or property and only incidentally operated or moved over a highway.
  84. “Specially constructed vehicle” means any vehicle which was not constructed originally under the distinct name, make, model, or type by a generally recognized manufacturer of vehicles.
  85. “Stand” or “standing” means the halting of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in receiving or discharging passengers.
  86. “State” means a state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a province of the Dominion of Canada.
  87. “Stop”, when required, means complete cessation from movement.
  88. “Stop” or “stopping”, when prohibited, means any halting, even momentarily, of a vehicle, whether occupied or not, except when necessary to avoid conflict with other traffic or in compliance with the directions of a police officer or traffic-control sign or signal.
  89. “Street” means the entire width between boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.
  90. “Superintendent” means the superintendent of the North Dakota state highway patrol, acting directly or through authorized employees of the superintendent.
  91. “Suspension” means that the operator’s license is temporarily withdrawn but only during the period of the suspension.
  92. “Through highway” means every highway or portion thereof on which vehicular traffic is given preferential right of way, and at the entrances to which vehicular traffic from intersecting highways is required by law to yield right of way to vehicles on such through highway and in obedience to either a stop sign or yield sign, when such signs are erected by law.
  93. “Trackless trolley coach” means every motor vehicle which is propelled by electric power obtained from overhead trolley wires but not operated upon rails.
  94. “Traffic” means pedestrians, ridden or herded animals, vehicles, streetcars, and other conveyances either singly or together while using any highway for purposes of travel.
  95. “Traffic-control signal” means any device, whether manually, electrically, or mechanically operated, by which traffic is alternately directed to stop and to proceed.
  96. “Trailer” includes every vehicle without motive power designed to carry property or passengers wholly on its own structure and to be drawn by a motor vehicle, except that it does not include a “housetrailer” or “mobile home”, which terms mean a vehicle as defined in this subsection which is designed and intended for use as living or sleeping quarters for people and which is not used for commercial hauling of passengers.
  97. “Travel trailer” means a vehicular unit mounted on wheels, designed to provide temporary living quarters for recreational, camping, or travel use, and of such size or weight as not to require a special highway movement permit when towed by a motorized vehicle.
  98. “Truck” includes every motor vehicle designed, used, or maintained primarily for transportation of property.
  99. “Truck camper” means a portable unit that is constructed to provide temporary living quarters for recreational, camping, or travel use; consists of a roof, floor, and sides; and is designed to be loaded onto and unloaded from the bed of a pickup truck.
  100. “Truck tractor” includes every motor vehicle designed and used primarily for drawing other vehicles and not so constructed as to carry a load other than a part of the weight of the vehicle and load so drawn.
  101. “Urban district” means the territory contiguous to and including any street which is built up with structures devoted to business, industry, or dwelling houses situated at intervals of less than one hundred feet [30.48 meters] for a distance of a quarter of a mile [402.34 meters] or more.
  102. “Used vehicle” means a motor vehicle which has been sold, bargained, exchanged, given away, or the title to which has been transferred to another, by the person who first acquired it from the manufacturer or importer, dealer, or agent of the manufacturer or importer.
  103. “Vehicle” includes every device in, upon, or by which any person or property may be transported or drawn upon a public highway, except devices moved by human power or used exclusively upon stationary rails or tracks. The term does not include an electric bicycle.

Source:

S.L. 1927, ch. 162, § 1; 1927, ch. 179, § 1; 1927, ch. 180, § 1; 1931, ch. 186, § 1; 1931, ch. 187, § 1; 1933, ch. 160, § 1; 1933, ch. 162, § 1; 1939, ch. 167, §§ 1 to 5; R.C. 1943, § 39-0101; S.L. 1955, ch. 237, §§ 1, 67; 1957 Supp., § 39-0101; S.L. 1959, ch. 286, § 12; 1959, ch. 287, § 2; 1959, ch. 288, § 1; 1963, ch. 253, § 1; 1963, ch. 264, § 2; 1963, ch. 265, §§ 1, 7; 1963, ch. 277, § 1; 1963, ch. 283, § 2; 1963, ch. 405, § 2; 1965, ch. 261, § 1; 1965, ch. 262, § 1; 1965, ch. 263, § 1; 1965, ch. 264, § 1; 1969, ch. 333, § 1; 1969, ch. 343, § 3; 1975, ch. 322, § 1; 1975, ch. 349, § 2; 1977, ch. 326, § 1; 1977, ch. 327, §§ 1, 2; 1977, ch. 328, § 1; 1977, ch. 376, § 1; 1979, ch. 187, § 73; 1979, ch. 401, § 1; 1979, ch. 402, §§ 1, 2; 1979, ch. 403, §§ 1 to 3; 1979, ch. 404, § 1; 1981, ch. 131, § 8; 1981, ch. 378, § 1; 1983, ch. 414, § 1; 1983, ch. 415, § 3; 1983, ch. 416, § 1; 1985, ch. 82, § 98; 1985, ch. 412, § 1; 1985, ch. 413, § 1; 1987, ch. 438, § 1; 1987, ch. 439, § 1; 1989, ch. 72, §§ 13, 25; 1989, ch. 442, § 1; 1991, ch. 640, § 7; 1993, ch. 54, § 106; 1993, ch. 80, § 7; 1993, ch. 375, § 1; 1997, ch. 323, § 1; 1997, ch. 324, § 1; 1997, ch. 325, § 1; 1999, ch. 330, §§ 1, 2; 2003, ch. 307, §§ 1, 2; 2003, ch. 322, § 3; 2005, ch. 16, § 25; 2005, ch. 340, § 2; 2005, ch. 344, § 1; 2007, ch. 315, § 1; 2007, ch. 343, § 1; 2011, ch. 271, § 1; 2011, ch. 272, § 1; 2011, ch. 266, § 1; 2013, ch. 281, § 1; 2013, ch. 291, §§ 1, 2; 2013, ch. 307, §§ 1, 2; 2015, ch. 276, § 3, effective April 20, 2015; 2017, ch. 255, § 1, effective August 1, 2017; 2017, ch. 256, § 1, effective August 1, 2017; 2021, ch. 278, § 1, effective August 1, 2021; 2021, ch. 279, § 1, effective August 1, 2021; 2021, ch. 280, § 1, effective August 1, 2021.

Effective Date.

The 2015 amendment of this section by section 3 of chapter 276, S.L. 2015 became effective April 20, 2015, pursuant to an emergency clause in section 12 of chapter 276, S.L. 2015.

Note.

Section 39-01-01 was amended 4 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 279, Session Laws 2021, Senate Bill 2329; Section 1 of Chapter 278, Session Laws 2021, House Bill 1148; Section 351 of Chapter 352, Session Laws 2021, House Bill 1247; and Section 1 of Chapter 280, Session Laws 2021, Senate Bill 2097.

Section 39-01-01 was amended 2 times by the 2017 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 256, Session Laws 2017, House Bill 1128; and Section 1 of Chapter 255, Session Laws 2017 House Bill 1105.

Cross-References.

Definition of “conviction”, operators’ licenses, see § 39-06-30.

Definition of suspension, revocation and cancellation, operators’ licenses, see § 39-06-23.

Definitions relating to disposition of traffic offenses, see §§ 39-06.1-01, 39-06.1-08, 39-06.1-09.

Definitions relating to motor vehicle title registration, see § 39-05-01.

General penalty for violation of title, infraction, see § 39-07-06.

Penalty for violation of chapter, misdemeanor, see § 39-01-07.

Notes to Decisions

Construction with N.D.C.C. § 39-10-38(1).

Reading N.D.C.C. §§ 39-01-01(73) and 39-10-38(1) and the definition of highway at § 39-01-01(29) together, no person may turn a vehicle or move right or left upon that portion of a publicly maintained way improved, designed, or ordinarily used for vehicular travel without giving an appropriate signal; section 39-10-38(1) requires drivers to signal prior to exiting alleys when such alleys qualify as roadways under § 39-01-01(73). State v. Hirschkorn, 2016 ND 117, 881 N.W.2d 244, 2016 N.D. LEXIS 121 (N.D. 2016).

Under a concerted, harmonious interpretation, N.D.C.C. § 39-10-45 supplements rather than supplants N.D.C.C. § 39-10-38(1); Read together, §§ 39-10-38(1) and 39-10-45 require drivers to stop at specific distances before exiting alleys in addition to, but not exclusive of, requiring drivers on roadways to signal when appropriate. State v. Hirschkorn, 2016 ND 117, 881 N.W.2d 244, 2016 N.D. LEXIS 121 (N.D. 2016).

Legislature's failure to exempt drivers from the requirement to signal while exiting alleys when it specifically exempted drivers exiting alleys from other requirements is an indication of its intent not to do so with the signaling requirement. State v. Hirschkorn, 2016 ND 117, 881 N.W.2d 244, 2016 N.D. LEXIS 121 (N.D. 2016).

"Driver."

There was sufficient evidence to convict defendant of operating a vehicle while under the influence of alcohol because a district court was not obligated to believe testimony that a dirt bike was inoperable or that drinking occurred while the bike was being pushed. It was not necessary to decide if defendant was a “driver” based on his ability to direct the movement of the bike by steering and controlling the brakes because there was other evidence of defendant's driving prior to being located by an officer; the officer responded to a complaint about dirt bikes being driven in a recreational area, the officer heard the dirt bikes near the bottom of a dam area, and he saw headlights in the trees. State v. Hennings, 2015 ND 283, 871 N.W.2d 473, 2015 N.D. LEXIS 298 (N.D. 2015).

Duty to signal.

District court erred in suppressing evidence obtained from a traffic stop because the deputy's belief that the law required drivers to signal prior to exiting alleys was objectively reasonable; the courts had not interpreted the extent and interplay of the various statutory provisions. State v. Hirschkorn, 2016 ND 117, 881 N.W.2d 244, 2016 N.D. LEXIS 121 (N.D. 2016).

Failure to signal.

District court erred in suppressing evidence obtained from a traffic stop because defendant committed a traffic violation, giving a deputy reasonable suspicion to justify the traffic stop; the deputy observed defendant fail to signal when exiting an alley qualifying as a roadway, and the alley qualified as a roadway because it was a publicly maintained way improved, designed, or ordinarily used for vehicular travel, requiring defendant to signal prior to exiting the alley. State v. Hirschkorn, 2016 ND 117, 881 N.W.2d 244, 2016 N.D. LEXIS 121 (N.D. 2016).

District court erred in suppressing evidence obtained from a traffic stop because the deputy's belief that the law required drivers to signal prior to exiting alleys was objectively reasonable; the courts had not interpreted the extent and interplay of the various statutory provisions. State v. Hirschkorn, 2016 ND 117, 881 N.W.2d 244, 2016 N.D. LEXIS 121 (N.D. 2016).

Private Driveway.

Jury could have reasonably concluded defendant's driveway, although private, was an area to which the public had a right of access for vehicular use, and was within the scope of the offense of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor fourth-offense, for which defendant was convicted. State v. Mayland, 2017 ND 244, 902 N.W.2d 762, 2017 N.D. LEXIS 254 (N.D. 2017).

“Highway”.

The term “highway” as defined herein includes not only the traveled portion of a roadway, but the shoulder and ditch alongside the roadway as well. State v. Fuchs, 219 N.W.2d 842, 1974 N.D. LEXIS 191 (N.D. 1974); State v. Ghylin, 250 N.W.2d 252, 1977 N.D. LEXIS 223 (N.D. 1977).

“Official Traffic-Control Devices”.

The evidence presented through videotape, pictures, and deposition testimony about signing, visibility, and road conditions, showed that the county did not create a pitfall, trap, or snare for a prudent driver at the accident intersection by erecting certain road signs and failing to erect others. Boudreau v. Estate of Miller, 2000 ND 30, 606 N.W.2d 514, 2000 N.D. LEXIS 21 (N.D. 2000).

Operating a Motor Vehicle.

The statutory language “operating a motor vehicle” clearly encompasses actual physical control as well as driving, as this section defines “operator” as one who drives or is in actual physical control of a motor vehicle. Wolf v. North Dakota Highway Comm'r, 458 N.W.2d 327, 1990 N.D. LEXIS 138 (N.D. 1990).

“Owner”.

An informal arrangement that son would reimburse his father for the purchase price of an auto if, as, and when he could, with the father retaining legal title and the ultimate right to use and control the automobile, did not constitute a chattel mortgage or a conditional sale as contemplated by the definition of “owner” in this section. Milbank Mut. Ins. Co. v. Wentz, 352 F.2d 592, 1965 U.S. App. LEXIS 3999 (8th Cir. N.D. 1965).

Snowmobile a Motor Vehicle.

A snowmobile is a motor vehicle under N.D.C.C. tit. 39; determination whether uninsured motorist coverage under former N.D.C.C. § 26-02-42 was required in liability policies covering snowmobiles was not necessary to resolve case and thus that issue was not considered. Hughes v. State Farm Mut. Auto. Ins. Co., 236 N.W.2d 870, 1975 N.D. LEXIS 143 (N.D. 1975).

Trains.

Trains are excluded from the definition of “vehicle”. South v. National R.R. Passenger Corp., 290 N.W.2d 819, 1980 N.D. LEXIS 197 (N.D. 1980).

Unmarked Crosswalk.

Where at the time of accident there was no sidewalk on the side of the street at the intersection, there could not exist an unmarked crosswalk, since sidewalks are required to be on both sides of the intersection to create an unmarked crosswalk, and the trial court did not err in so instructing the jury. Garrett v. Nagel, 417 N.W.2d 855, 1988 N.D. App. LEXIS 2 (N.D. Ct. App. 1988).

“Motor Vehicle”.

An automobile incapable of movement because “high-centered”, with its front wheels on the road and its back wheels in a ditch, was still a “motor vehicle” within meaning of this section. State v. Schuler, 243 N.W.2d 367, 1976 N.D. LEXIS 240 (N.D. 1976).

An aircraft is not a “motor vehicle”. RLI Ins. Co. v. Heling, 520 N.W.2d 849, 1994 N.D. LEXIS 175 (N.D. 1994).

Court properly granted summary judgment in favor of an insurer in a declaratory judgment action to determine the applicability of an exception to a motor vehicle exclusion in a farmer’s policy for vehicles primarily used as farm implements. The farmer’s semi-truck did not fit within the exception to the policy exclusion because the semi-truck was not both designed for and primarily used as a farm implement, the primary purpose of the design of the truck was to transport cargo for long distances, and, under the plain language of the policy, the farmer’s use of the truck made it subject to motor vehicle registration requirements. Nationwide Mut. Ins. Cos. v. Lagodinski, 2004 ND 147, 683 N.W.2d 903, 2004 N.D. LEXIS 279 (N.D. 2004).

DECISIONS UNDER PRIOR LAW

Application.

Suspension of a driver’s license in 1990 was a conviction under N.D.C.C. § 39-06.2-10(8) and N.D.C.C. § 39-06.2-02(8) because a transportation department was an authorized administrative tribunal under N.D.C.C. § 39-06.2-10(8), and the definition of conviction under N.D.C.C. § 39-06.2-02(8) was used instead of the definition of conviction in N.D.C.C. § 39-06-30 since N.D.C.C. § 39-06.2-02(8) was the more specific statute; therefore, a lifetime suspension of a commercial license was proper for two driving under the influence convictions. Bienek v. DOT, 2007 ND 117, 736 N.W.2d 492, 2007 N.D. LEXIS 117 (N.D. 2007). (decided under former N.D.C.C. 39-06-30).

Definition of “conviction” in N.D.C.C. § 39-06.2-02(8) is a special provision applicable to commercial driver’s licenses that conflicts with the definition of “conviction” in N.D.C.C. § 39-06-30, a general provision applicable to motor vehicle operator’s licenses; under statutory construction principles, the definition of “conviction” found in N.D.C.C. § 39-06.2-02(8) prevails over the definition of “conviction” found in N.D.C.C. § 39-06-30. Therefore, the definition of “conviction” found in N.D.C.C. § 39-06.2-02(8) must be used when interpreting N.D.C.C. § 39-06.2-10(8). (decided under former N.D.C.C. 39-06-30) Bienek v. DOT, 2007 ND 117, 736 N.W.2d 492, 2007 N.D. LEXIS 117 (N.D. 2007).

While defendant’s appeal of DUI and DUS convictions was pending, defendant was convicted, again, of DUI and DUS; trial court could properly use DUI and DUS that were pending on appeal for enhancement purposes because the first DUI and DUS were “convictions,” as defined by N.D.C.C. § 39-06-30. State v. Skarsgard, 2007 ND 159, 740 N.W.2d 64, 2007 N.D. LEXIS 167 (N.D. 2007) (decided under former N.D.C.C. 39-06-30).

Bond Forfeiture.

For purposes of Title 39, a bond forfeiture is a “conviction.” City of Minot v. Mattern, 449 N.W.2d 560, 1989 N.D. LEXIS 248 (N.D. 1989).

Under this section, a bond forfeiture for failing to appear for trial on a charge of violating N.D.C.C. § 39-08-01 or an equivalent ordinance is a conviction as long as the forfeiture has not been vacated. City of Minot v. Mattern, 449 N.W.2d 560, 1989 N.D. LEXIS 248 (N.D. 1989) (decided under former N.D.C.C. 39-06-30).

Jury Trial on Appeal.

Where defendant did not show up for trial on a driving under the influence (DUI) charge and the municipal court granted the city prosecutor’s motion to forfeit his bond, defendant prevented the occurrence of the jurisdictional predicate (a municipal court trial and a determination by the municipal judge) giving rise to his right to secure a jury trial upon appeal (decided prior to 1987 amendments to N.D.C.C. § 40-18-15 and enactment of N.D.C.C. § 40-18-15.1). (decided under former N.D.C.C. 39-06-30) City of Minot v. Mattern, 449 N.W.2d 560, 1989 N.D. LEXIS 248 (N.D. 1989).

Meaning of “Conviction” in Section 39-06-27.

The proper interpretation of “conviction” for purposes of N.D.C.C. § 39-06-27 is a final order or judgment of conviction by the supreme court of a sister state or any lower court of that state having jurisdiction, provided that no appeal is pending and the time for filing a notice of appeal has elapsed. That construction preserves the legislative intent regarding license suspensions or revocations resulting from convictions in sister states and gives meaning to both N.D.C.C. § 39-06-27 and this section. Holen v. Hjelle, 396 N.W.2d 290, 1986 N.D. LEXIS 437 (N.D. 1986) (decided under former N.D.C.C. 39-06-30).

If the literal definition of conviction in this section is applied to N.D.C.C. § 39-06-27, that section and other provisions relating to license suspensions or revocations for out-of-state convictions would be rendered meaningless, creating an absurd and ludicrous result. Holen v. Hjelle, 396 N.W.2d 290, 1986 N.D. LEXIS 437 (N.D. 1986) (decided under former N.D.C.C. 39-06-30).

Trial court properly considered a criminal conviction which was pending appeal during the sentencing hearing, and defendant’s reliance on N.D.C.C. § 39-06-30 which deals with the timing of reports of convictions to the appropriate licensing authority for purposes of license suspensions and revocations was misplaced as it did not define a conviction for purposes of sentencing a defendant under Title 12.1 of the N.D.C.C. State v. Ellis, 2001 ND 84, 625 N.W.2d 544, 2001 N.D. LEXIS 89 (N.D. 2001) (decided under former N.D.C.C. 39-06-30).

Notice of Conviction.

An unsigned document asserted to be a notice of conviction in another state, which did not bear any indication of a judgment having been rendered, a suspension, or a certification, did not constitute notice of a conviction for purposes of N.D.C.C. § 39-06-27 and this section providing for suspension of driving privileges. Langer v. North Dakota State Highway Comm'r, 409 N.W.2d 635, 1987 N.D. LEXIS 367 (N.D. 1987) (decided under former N.D.C.C. 39-06-30).

Purpose of Amendments.

Legislative history reflects that amendments to this section were made to require reports of convictions to be made to the licensing authority after a decision by the North Dakota supreme court or the running of the time for appeal rather than after a “final” order or judgment of conviction by a trial court. Nothing in the legislative history suggests that, by defining conviction as it did, the legislative assembly intended to eliminate the use of convictions in sister states for North Dakota license suspensions or revocations. Rather, the purpose of the amendments was to deal with the timing of reports of convictions by North Dakota courts to the licensing authority. Holen v. Hjelle, 396 N.W.2d 290, 1986 N.D. LEXIS 437 (N.D. 1986) (decided under former N.D.C.C. 39-06-30).

Suspension and Revocation Distinguished.

A suspension is effective for a specified period while a revocation continues until such time as a new application has been submitted and new license issued; where a defendant took no action regarding reinstatement of his driving privilege following the revocation of his license, he was properly prosecuted under N.D.C.C. § 39-06-42, establishing the criminal penalty for driving while under suspension or revocation. State v. Brude, 222 N.W.2d 296, 1974 N.D. LEXIS 156 (N.D. 1974).

The distinction between suspension and revocation under these sections is that a suspension is effective for a specified period, while a revocation continues until such time as a new application has been submitted and a license issued. City of Wahpeton v. Desjarlais, 458 N.W.2d 330, 1990 N.D. LEXIS 136 (N.D. 1990) (decided under former N.D.C.C. 39-06-23).

Collateral References.

What amounts to conviction or adjudication of guilt for purpose of refusal, revocation, or suspension of automobile driver’s license, 79 A.L.R.2d 866.

Conviction or acquittal in previous criminal case as bar to revocation or suspension of driver’s license on same factual charges, 96 A.L.R.2d 612.

Airplane or other aircraft as “motor vehicle” or the like within statute providing for constructive or substituted service of process on nonresident motorist, 36 A.L.R.3d 1387.

“Vehicle” or “land vehicle” within meaning of insurance policy provision defining risks covered or excepted, 65 A.L.R.3d 824.

“Owner” within statute making owner responsible for injury or death inflicted by operator of automobile, 74 A.L.R.3d 739.

Cough medicine as “intoxicating liquor” under DUI statute, 65 A.L.R.4th 1238.

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

39-01-01. Definitions. [Effective September 1, 2022]

In this title, unless the context or subject matter otherwise requires:

  1. “"Appropriate licensed addiction treatment program" means an addiction treatment program conducted by an addiction facility licensed by the department of human services or conducted by a licensed individual specifically trained in addiction treatment
  2. “Authorized emergency vehicles”:
    1. “Class A” authorized emergency vehicles means:
      1. Vehicles of a governmentally owned fire department.
      2. Vehicles when operated by or under the control of a police officer having authority to enforce the provisions of this title or by a salaried employee of a municipal police department within the municipality or by a sheriff or deputy sheriff not including special deputy sheriffs, or by the director of the department of corrections and rehabilitation and the director’s authorized agents who have successfully completed training in the operation of class A authorized emergency vehicles.
      3. Vehicles clearly identifiable as property of the department of corrections and rehabilitation when operated or under the control of the director of the department of corrections and rehabilitation.
      4. Ambulances and other vehicles authorized by licensure granted under chapter 23-27.
      5. Vehicles operated by or under the control of the director, district deputy director, or a district deputy game warden of the game and fish department.
      6. Vehicles owned or leased by the United States and used for law enforcement purposes.
      7. Vehicles designated for the use of the adjutant general or assistant adjutant general in cases of emergency.
      8. Vehicles operated by or under the control of the director of the parks and recreation department.
      9. Vehicles operated by or under the control of a licensed railroad police officer and used for law enforcement purposes.
      10. Vehicles operated by or under the control of the state forester.
      11. Vehicles operated by or under the control of the bureau of criminal investigation and used for law enforcement purposes.
      12. Vehicles operated by or under the state department of health in cases of emergencies.
      13. Vehicles used or operated by governmental search and rescue personnel while performing emergency operations or duties. As used in this paragraph, "search and rescue" means deployment, coordination, and use of available resources and personnel in locating, relieving the distress, and preserving the life of and removing an individual who is missing, trapped, or lost in the back country, remote areas, or waters of the state. The term includes water and dive rescue.
    2. “Class B” authorized emergency vehicles means wreckers and such other emergency vehicles as are authorized by the local authorities.
    3. “Class C” authorized emergency vehicles means:
      1. Vehicles used by the state division of homeland security or local division of emergency management organizations.
      2. Vehicles used by volunteer firefighters while performing their assigned disaster and emergency responsibilities.
      3. Vehicles, other than ambulances, used by emergency medical services personnel.
      4. Vehicles used by volunteer search and rescue personnel if performing an emergency operation or duty upon the request of a state entity, political subdivision, or volunteer fire department. A volunteer organization may classify a personal vehicle as a class C emergency vehicle if needed to assist in a search and rescue operation in accordance with this paragraph. As used in this paragraph, "search and rescue" means deployment, coordination, and use of available resources and personnel in locating, relieving the distress, and preserving the life of and removing an individual who is missing, trapped, or lost in the backcountry, remote areas, or waters of the state. The term includes water and dive rescue.
  3. “Bicycle” means every device propelled solely by human power upon which any person may ride, having two tandem wheels or two parallel wheels and one forward or rearward wheel. The term includes an electric bicycle.
  4. “Bus” means every motor vehicle designed for carrying more than ten passengers and used for the transportation of persons, and every motor vehicle, other than a taxicab, designed and used for the transportation of persons for compensation. Provided, every motor vehicle designed for carrying not more than fifteen persons and used for a ridesharing arrangement, as defined in section 8-02-07, is not a “bus”.
  5. “Business district” means the territory contiguous to a highway when fifty percent or more of the frontage thereon for a distance of three hundred feet [91.44 meters] or more is occupied by buildings in use for business.
  6. “Camping trailer” means a vehicular portable unit mounted on wheels and constructed with collapsible partial side walls that fold for towing by another vehicle and unfold at the campsite to provide temporary living quarters for recreational, camping, or travel use.
  7. “Cancellation” means a license is annulled and terminated because of an error or defect or because the licensee is no longer entitled to the operator’s license, but the cancellation of a license is without prejudice and application for a new license may be made at any time after the cancellation.
  8. “Child restraint system” means a specifically designed device, built-in seating system, or belt-positioning booster that meets the federal motor vehicle safety standards and is permanently affixed to a motor vehicle, is affixed to the vehicle by a safety belt or universal attachment system, or is combined with a federally compliant safety belt system.
  9. “Commercial freighting” means the carriage of things other than passengers, for hire, except that such term does not include:
    1. The carriage of things other than passengers within the limits of the same city;
    2. Carriage by local dray lines of baggage or goods to or from a railroad station from or to places in such city or in the immediate vicinity thereof, in this state, and not to exceed two miles [3.22 kilometers] from the corporate or recognized limits of said city; or
    3. Hauling done by farmers for their neighbors in transporting agricultural products to or from market.
  10. “Commercial passenger transportation” means the carriage of passengers for hire, except that the term does not include:
    1. The carriage of passengers within the limits of a city.
    2. The carriage by local buslines of passengers to or from a railroad station from or to places within any city or within two miles [3.22 kilometers] of the limits of the city.
    3. The carriage of passengers under a ridesharing arrangement, as defined in section 8-02-07.
  11. “Commissioner” means the director of the department of transportation of this state, acting directly or through authorized agents as provided by section 24-02-01.3.
  12. “Controlled-access highway” means every highway, street, or roadway in respect to which owners or occupants of abutting lands and other persons have no legal right of access to or from the same except at such points only and in such manner as may be determined by the public authority having jurisdiction over such highway, street, or roadway.
  13. “Conviction” means a final order or judgment or conviction by the North Dakota supreme court, any lower court having jurisdiction, a tribal court, or a court in another state if an appeal is not pending and the time for filing a notice of appeal has elapsed. Subject to the filing of an appeal, the term includes:
    1. An imposed and suspended sentence;
    2. A deferred imposition of sentence under subsection 4 of section 12.1-32-02; or
    3. A forfeiture of bail or collateral deposited to secure a defendant’s appearance in court and the forfeiture has not been vacated.
  14. “Crosswalk” means that part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs, or, in the absence of curbs, from the edges of the traversable roadway; or any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by lines or other markings on the surface.
  15. “Dealer” means every person, partnership, corporation, or limited liability company engaged in the business of buying, selling, or exchanging motor vehicles, or who advertises, or holds out to the public as engaged in the buying, selling, or exchanging of motor vehicles, or who engages in the buying of motor vehicles for resale. Any person, partnership, corporation, limited liability company, or association doing business in several cities or in several locations within a city must be considered a separate dealer in each such location.
  16. “Department” means the department of transportation of this state as provided by section 24-02-01.1.
  17. “Director” means the director of the department of transportation of this state as provided by section 24-02-01.3.
  18. “Driver” means every person who drives or is in actual physical control of a vehicle.
  19. “Electric bicycle” means a bicycle equipped with fully operable pedals, a saddle or seat for the rider, and an electric motor of seven hundred fifty or fewer watts which meets the requirements of one of the following three classes:
    1. A class 1 electric bicycle if the motor provides assistance only when the individual is pedaling and the motor ceases to provide assistance when a speed of twenty miles [32 kilometers] per hour is achieved.
    2. A class 2 electric bicycle if the motor is capable of propelling the bicycle without the individual pedaling and the motor ceases to provide assistance when a speed of twenty miles [32 kilometers] per hour is achieved.
    3. A class 3 electric bicycle if the motor provides assistance only when the individual is pedaling and the motor ceases to provide assistance when a speed of twenty-eight miles [45 kilometers] per hour is achieved.
  20. “Electronic communication device” means an electronic device, including a wireless telephone, personal digital assistant, a portable or mobile computer or other device, and video display equipment. The term does not include a global positioning system or navigation system or a device that is physically or electronically integrated into the motor vehicle.
  21. “Essential parts” means all integral and body parts of a vehicle of a type required to be registered hereunder, the removal, alteration, or substitution of which would tend to conceal the identity of the vehicle or substantially alter its appearance, model, type, or mode of operation and includes all integral parts and body parts, the removal, alteration, or substitution of which will tend to conceal the identity or substantially alter the appearance of the vehicle.
  22. “Explosives” means any chemical compound or mechanical mixture that is commonly used or intended for the purpose of producing an explosion and which contains any oxidizing and combustive units or other ingredients in such proportions, quantities, or packing that an ignition by fire, by friction, by concussion, by percussion, or by detonator of any part of the compound or mixture may cause such a sudden generation of highly heated gases that the resultant gaseous pressures are capable of producing destructive effects on contiguous objects or by destroying life or limb.
  23. “Farm tractor” includes every motor vehicle designed and used primarily as a farm implement for drawing plows, moving machines, and other implements of husbandry.
  24. “Farm trailer” includes those trailers and semitrailers towed by a bona fide resident farmer hauling the farmer’s own agricultural, horticultural, dairy, and other farm products if the gross weight, not including the towing vehicle, does not exceed twenty-four thousand pounds [10886.22 kilograms].
  25. “Fifth-wheel travel trailer” means a vehicular unit mounted on wheels, designed to provide temporary living quarters for recreational, camping, or travel use, of such size or weight as not to require a special highway movement permit and designed to be towed by a motorized vehicle that contains a towing mechanism that is mounted above or forward of the tow vehicle’s rear axle.
  26. “Flammable liquid” means any liquid which has a flash point of seventy degrees Fahrenheit [21.11 degrees Celsius], or less, as determined by a tagliabue or equivalent closed-cup test device.
  27. “Foreign vehicle” means every motor vehicle which is brought into this state other than in the ordinary course of business by or through a manufacturer or dealer and which has not been registered in this state.
  28. “Gross weight” means the weight of a vehicle without load plus the weight of any load thereon.
  29. “Guest” means and includes a person who accepts a ride in any vehicle without giving compensation therefor.
  30. “Highway” means the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel and of every way privately maintained within a mobile home park, trailer park, or campground containing five or more lots for occupancy by mobile homes, travel trailers, or tents when any part thereof is open for purposes of vehicular travel.
  31. “House car” or “motor home” means a motor vehicle which has been reconstructed or manufactured primarily for private use as a temporary or recreational dwelling and having at least four of the following permanently installed systems:
    1. Cooking facilities.
    2. Icebox or mechanical refrigerator.
    3. Potable water supply including plumbing and a sink with faucet either self-contained or with connections for an external source, or both.
    4. Self-contained toilet or a toilet connected to a plumbing system with connection for external water disposal, or both.
    5. Heating or air-conditioning system, or both, separate from the vehicle engine or the vehicle engine electrical system.
    6. A 110-115 volt alternating current electrical system separate from the vehicle engine electrical system either with its own power supply or with a connection for an external source, or both, or a liquefied petroleum system and supply.
  32. “Implement of husbandry” means every vehicle designed and adapted exclusively for agricultural, horticultural, or livestock raising operations or for lifting or carrying an implement of husbandry and in either case not subject to registration if used upon the highway.
  33. “Intersection” means the area embraced within the prolongation or connection of the lateral curb lines, or, if none, then the lateral boundary lines of the roadways of two highways which join one another at, or approximately at, right angles, or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict. Where a highway includes two roadways thirty feet [9.14 meters] or more apart, then every crossing of each roadway of such divided highway by an intersecting highway must be regarded as a separate intersection. In the event such intersecting highway also includes two roadways thirty feet [9.14 meters] or more apart, then every crossing of two roadways of such highways must be regarded as a separate intersection.
  34. “Intoxicating liquor” means and includes any beverage containing alcohol.
  35. “Judgment” means any judgment which has become final by expiration without appeal of the time within which an appeal might have been perfected, or by final affirmation on appeal, rendered by a court of competent jurisdiction of any state of the United States, upon a claim for relief arising out of ownership, maintenance, or use of any motor vehicle, for damages, including damages for care and loss of services, because of bodily injury to or death of any person, or for damages because of injury to or destruction of property, including the loss of use thereof, or upon a claim for relief on an agreement of settlement for such damages.
  36. “Legal owner” means a person who holds the legal title to a vehicle.
  37. “Licensed health care provider” means doctor of medicine, doctor of osteopathy, doctor of chiropractic, optometrist, psychologist, advanced practice registered nurse, or physician assistant who is licensed, certified, or registered in accordance with laws and regulations in this or another state.
  38. “Lienholder” means a person holding a security interest in a vehicle.
  39. “Local authorities” includes every county, municipal, and other local board or body having authority to adopt local police regulations under the constitution and laws of this state.
  40. “Mail” means to deposit mail properly addressed and with postage prepaid with the United States postal service.
  41. “Manifest injustice” means a specific finding by the court that the imposition of sentence is unreasonably harsh or shocking to the conscience of a reasonable person, with due consideration of the totality of circumstances.
  42. “Manufactured home” means a structure, transportable in one or more sections, that, in the traveling mode, is eight body feet [2.44 meters] or more in width or forty body feet [12.19 meters] or more in length, or, when erected onsite, is three hundred twenty square feet [29.73 square meters] or more, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air-conditioning, and electrical systems contained therein. The term includes any structure that meets all of the requirements of this subsection except the size requirements and with respect to whether the manufacturer voluntarily files a certification required by the United States secretary of housing and urban development and complies with the standards established under title 42 of the United States Code.
  43. “Manufacturer” means any person who manufactures, assembles, or imports and sells new motor vehicles to new motor vehicle dealers for resale in the state; but such term does not include a person who assembles or specially builds interior equipment on a completed vehicle supplied by another manufacturer, distributor, or supplier.
  44. “Metal tires” includes all tires the surface of which in contact with the highway is wholly or partly of metal or other hard, nonresilient material except that this provision does not apply to pneumatic tires.
  45. “Mobile home” means a structure, either single or multisectional, which is built on a permanent chassis, ordinarily designed for human living quarters, either on a temporary or permanent basis, owned or used as a residence or place of business of the owner or occupant, which is either attached to utility services or is twenty-seven feet [8.23 meters] or more in length.
  46. “Modular unit” includes every factory fabricated transportable building unit designed to be incorporated with similar units at a building site into a modular structure to be used for residential, commercial, educational, or industrial purposes.
  47. “Motor vehicle” includes every vehicle that is self-propelled, every vehicle that is propelled by electric power obtained from overhead trolley wires, but not operated upon rails, and, for purposes of motor vehicle registration, title registration, and operator’s licenses, motorized bicycles. The term does not include a snowmobile as defined in section 39-24-01 or an electric bicycle.
  48. “Motorcycle” means every motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding implements of husbandry. The term does not include an electric bicycle.
  49. “Motorized bicycle” means a vehicle equipped with two or three wheels, foot pedals to permit muscular propulsion or footrests for use by the operator, a power source providing up to a maximum of two brake horsepower having a maximum piston or rotor displacement of 3.05 cubic inches [49.98 milliliters] if a combustion engine is used, which will propel the vehicle, unassisted, at a speed not to exceed thirty miles [48.28 kilometers] per hour on a level road surface, and a power drive system that functions directly or automatically only, not requiring clutching or shifting by the operator after the drive system is engaged, and the vehicle may not have a width greater than thirty-two inches [81.28 centimeters]. The term does not include an electric bicycle.
  50. “Motor-powered recreational vehicle” means a motorcycle, unconventional vehicle, or off-highway vehicle as defined in section 39-29-01, or a snowmobile as defined in section 39-24-01. The term does not include an electric bicycle.
  51. “Nonresident” means any person who is not a resident of this state.
  52. “Nonresident’s operating privilege” means the privilege conferred upon a nonresident by the laws of this state pertaining to the operation by such person of a motor vehicle, or the use of a vehicle owned by such person, in this state.
  53. “Official traffic-control devices” means all signs, signals, markings, and devices not inconsistent with this title placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning, or guiding traffic.
  54. “Operator” means every person who drives or is in actual physical control of a motor vehicle upon a highway or who is exercising control over or steering a vehicle being towed by a motor vehicle.
  55. “Operator’s license”, “driver’s license”, or “license to operate a motor vehicle” means any operator’s or driver’s license or any other license or permit to operate a motor vehicle issued under, or granted by, the laws of this state, including:
    1. Any temporary license or instruction permit;
    2. The privilege of any person to drive a motor vehicle whether such person holds a valid license; or
    3. Any nonresident’s operating privilege as defined in this section.
  56. “Owner” means a person, other than a lienholder, having the property in or title to a vehicle. The term includes a person entitled to the use and possession of a vehicle subject to a security interest in another person, but excludes a lessee under a lease not intended as security.
  57. “Park”, when prohibited, means the standing of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in loading or unloading.
  58. “Passenger motor vehicle” means every motor vehicle designed principally for the transportation of persons and includes vehicles which utilize a truck chassis, but have a seating capacity for four or more passengers.
  59. “Pedestrian” means any person afoot.
  60. “Person” includes every natural person, firm, copartnership, association, corporation, or limited liability company.
  61. “Pneumatic tires” includes all tires inflated with compressed air.
  62. “Pole trailer” means every vehicle without motive power designed to be drawn by another vehicle and attached to the towing vehicle by means of a reach, or pole, or by being boomed or otherwise secured to the towing vehicle, and ordinarily used for transporting long or irregularly shaped loads such as poles, pipes, or structural members capable, generally, of sustaining themselves as beams between the supporting connections.
  63. “Police officer” means every officer authorized to direct or regulate traffic or to make arrests for violations of traffic regulations.
  64. “Primary source identity document” means documentary evidence of an individual’s name, date of birth, and legal presence required in chapters 39-06 and 39-06.2 related to the issuance of permits, licenses, and nondriver photo identification cards, and retained in the driver record.
  65. “Private road or driveway” means every way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other persons.
  66. “Proof of financial responsibility” means proof of ability to respond in damages for liability, on account of accidents occurring after the effective date of the proof, arising out of the ownership, maintenance, or use of a motor vehicle, in the amount of twenty-five thousand dollars because of bodily injury to or death of one person in any one accident, and, subject to the limit for one person, in the amount of fifty thousand dollars because of bodily injury to or death of two or more persons in any one accident, and in the amount of twenty-five thousand dollars because of injury to or destruction of property of others in any one accident.
  67. “Railroad” means a carrier of persons or property upon cars, other than streetcars, operated upon stationary rails.
  68. “Railroad sign or signal” means any sign, signal, or device erected by authority of a public body or official or by a railroad and intended to give notice of the presence of railroad tracks or the approach of a railroad train.
  69. “Reconstructed vehicle” means any vehicle, of a type required to be registered, materially altered from its original construction by the removal, addition, or substitution of new or used essential parts.
  70. “Recreational vehicle” means any motorcycle not qualified for registration, off-highway vehicle, snowmobile, vessel, or personal watercraft. The term does not include an electric bicycle.
  71. “Residence district” means territory contiguous to a highway not comprising a business district, when the frontage on such highway for a distance of three hundred feet [91.44 meters] or more is occupied mainly by dwellings, or by dwellings and buildings in use for business.
  72. “Revocation” means that the operator’s license is terminated and may not be renewed or restored, except on application for a new license presented to and acted upon by the director after the expiration of the period of revocation.
  73. “Right of way” means the privilege of the immediate use of a roadway.
  74. “Road tractor” means every motor vehicle designed and used for drawing other vehicles and not so constructed as to carry any load thereon either independently or any part of the weight of a vehicle or load so drawn.
  75. “Roadway” means that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder. In the event a highway includes two or more separate roadways, the term “roadway” as used herein refers to any such roadway separately but not to all such roadways collectively.
  76. “Saddle mount” means placing the front wheels of the drawn vehicle upon the bed of the drawing vehicle.
  77. “Safety zone” means the area or space officially set aside within a highway for the exclusive use of pedestrians and which is so plainly marked or indicated by proper signs as to be plainly visible at all times while set aside as a safety zone.
  78. “Salvage certificate of title” means a document issued by the department for purposes of proof of ownership of a salvage or destroyed vehicle and not acceptable for motor vehicle registration purposes.
  79. “Schoolbus” means a motor vehicle designed or used to carry more than ten passengers in addition to the driver, and is used for the purpose of transporting preprimary, primary, or secondary school students from home to school, from school to home, or to and from school-related events. For the purposes of chapter 39-21, "schoolbus" means any motor vehicle that is owned or leased by a public or governmental agency and used to transport, preprimary, primary, or secondary school students to or from school or to or from school-related events, or is privately owned and operated for compensation to transport preprimary, primary, or secondary school students to or from school or to or from school-related events. Schoolbus does not include a bus used as a common carrier.
  80. “Semitrailer” includes every vehicle of the trailer type so designed and used in conjunction with a truck or truck tractor that some part of its own weight and that of its own load rests upon or is carried by a truck or truck tractor, except that it does not include a “housetrailer” or “mobile home”.
  81. “Sidewalk” means that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, intended for use of pedestrians.
  82. “Solid tire” includes every tire made of rubber or other resilient material other than a pneumatic tire.
  83. “Special mobile equipment” means every vehicle not designed or used primarily for the transportation of persons or property and only incidentally operated or moved over a highway.
  84. “Specially constructed vehicle” means any vehicle which was not constructed originally under the distinct name, make, model, or type by a generally recognized manufacturer of vehicles.
  85. “Stand” or “standing” means the halting of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in receiving or discharging passengers.
  86. “State” means a state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a province of the Dominion of Canada.
  87. “Stop”, when required, means complete cessation from movement.
  88. “Stop” or “stopping”, when prohibited, means any halting, even momentarily, of a vehicle, whether occupied or not, except when necessary to avoid conflict with other traffic or in compliance with the directions of a police officer or traffic-control sign or signal.
  89. “Street” means the entire width between boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.
  90. “Superintendent” means the superintendent of the North Dakota state highway patrol, acting directly or through authorized employees of the superintendent.
  91. “Suspension” means that the operator’s license is temporarily withdrawn but only during the period of the suspension.
  92. “Through highway” means every highway or portion thereof on which vehicular traffic is given preferential right of way, and at the entrances to which vehicular traffic from intersecting highways is required by law to yield right of way to vehicles on such through highway and in obedience to either a stop sign or yield sign, when such signs are erected by law.
  93. “Trackless trolley coach” means every motor vehicle which is propelled by electric power obtained from overhead trolley wires but not operated upon rails.
  94. “Traffic” means pedestrians, ridden or herded animals, vehicles, streetcars, and other conveyances either singly or together while using any highway for purposes of travel.
  95. “Traffic-control signal” means any device, whether manually, electrically, or mechanically operated, by which traffic is alternately directed to stop and to proceed.
  96. “Trailer” includes every vehicle without motive power designed to carry property or passengers wholly on its own structure and to be drawn by a motor vehicle, except that it does not include a “housetrailer” or “mobile home”, which terms mean a vehicle as defined in this subsection which is designed and intended for use as living or sleeping quarters for people and which is not used for commercial hauling of passengers.
  97. “Travel trailer” means a vehicular unit mounted on wheels, designed to provide temporary living quarters for recreational, camping, or travel use, and of such size or weight as not to require a special highway movement permit when towed by a motorized vehicle.
  98. “Truck” includes every motor vehicle designed, used, or maintained primarily for transportation of property.
  99. “Truck camper” means a portable unit that is constructed to provide temporary living quarters for recreational, camping, or travel use; consists of a roof, floor, and sides; and is designed to be loaded onto and unloaded from the bed of a pickup truck.
  100. “Truck tractor” includes every motor vehicle designed and used primarily for drawing other vehicles and not so constructed as to carry a load other than a part of the weight of the vehicle and load so drawn.
  101. “Urban district” means the territory contiguous to and including any street which is built up with structures devoted to business, industry, or dwelling houses situated at intervals of less than one hundred feet [30.48 meters] for a distance of a quarter of a mile [402.34 meters] or more.
  102. “Used vehicle” means a motor vehicle which has been sold, bargained, exchanged, given away, or the title to which has been transferred to another, by the person who first acquired it from the manufacturer or importer, dealer, or agent of the manufacturer or importer.
  103. “Vehicle” includes every device in, upon, or by which any person or property may be transported or drawn upon a public highway, except devices moved by human power or used exclusively upon stationary rails or tracks. The term does not include an electric bicycle.

Source:

S.L. 1927, ch. 162, § 1; 1927, ch. 179, § 1; 1927, ch. 180, § 1; 1931, ch. 186, § 1; 1931, ch. 187, § 1; 1933, ch. 160, § 1; 1933, ch. 162, § 1; 1939, ch. 167, §§ 1 to 5; R.C. 1943, § 39-0101; S.L. 1955, ch. 237, §§ 1, 67; 1957 Supp., § 39-0101; S.L. 1959, ch. 286, § 12; 1959, ch. 287, § 2; 1959, ch. 288, § 1; 1963, ch. 253, § 1; 1963, ch. 264, § 2; 1963, ch. 265, §§ 1, 7; 1963, ch. 277, § 1; 1963, ch. 283, § 2; 1963, ch. 405, § 2; 1965, ch. 261, § 1; 1965, ch. 262, § 1; 1965, ch. 263, § 1; 1965, ch. 264, § 1; 1969, ch. 333, § 1; 1969, ch. 343, § 3; 1975, ch. 322, § 1; 1975, ch. 349, § 2; 1977, ch. 326, § 1; 1977, ch. 327, §§ 1, 2; 1977, ch. 328, § 1; 1977, ch. 376, § 1; 1979, ch. 187, § 73; 1979, ch. 401, § 1; 1979, ch. 402, §§ 1, 2; 1979, ch. 403, §§ 1 to 3; 1979, ch. 404, § 1; 1981, ch. 131, § 8; 1981, ch. 378, § 1; 1983, ch. 414, § 1; 1983, ch. 415, § 3; 1983, ch. 416, § 1; 1985, ch. 82, § 98; 1985, ch. 412, § 1; 1985, ch. 413, § 1; 1987, ch. 438, § 1; 1987, ch. 439, § 1; 1989, ch. 72, §§ 13, 25; 1989, ch. 442, § 1; 1991, ch. 640, § 7; 1993, ch. 54, § 106; 1993, ch. 80, § 7; 1993, ch. 375, § 1; 1997, ch. 323, § 1; 1997, ch. 324, § 1; 1997, ch. 325, § 1; 1999, ch. 330, §§ 1, 2; 2003, ch. 307, §§ 1, 2; 2003, ch. 322, § 3; 2005, ch. 16, § 25; 2005, ch. 340, § 2; 2005, ch. 344, § 1; 2007, ch. 315, § 1; 2007, ch. 343, § 1; 2011, ch. 271, § 1; 2011, ch. 272, § 1; 2011, ch. 266, § 1; 2013, ch. 281, § 1; 2013, ch. 291, §§ 1, 2; 2013, ch. 307, §§ 1, 2; 2015, ch. 276, § 3, effective April 20, 2015; 2017, ch. 255, § 1, effective August 1, 2017; 2017, ch. 256, § 1, effective August 1, 2017; 2021, ch. 278, § 1, effective August 1, 2021; 2021, ch. 279, § 1, effective August 1, 2021; 2021, ch. 280, § 1, effective August 1, 2021; 2021, ch. 352, § 351, effective September 1, 2022.

39-01-01.1. Declaration of legislative intent.

The legislative assembly in adopting title 39 recognized that the development of a modern and integrated highway system which is so essential to safe and efficient highway transportation represents a large investment of public funds. To ensure maximum public benefits from such investment, authority has been vested in appropriate agencies of government for the establishment, construction, maintenance, and operation of needed road facilities, within the limits of funds made available.

Additionally, the legislative assembly recognizes that other functions of government, established pursuant to title 39 to govern the ownership and use of motor vehicles, also are supported by public funds and render important public services which contribute to the safe and efficient use of roads and streets. The responsibilities of state government include such functions as vehicle registration and titling, driver licensing, financial responsibility, police traffic supervision, accident investigation and reporting, and use of accident records, traffic operations, and similar functions conducted under motor vehicle laws affecting motor vehicles and their use.

In fulfilling these responsibilities, the legislative assembly recognizes the necessity that individual prerogatives be considered secondary to the general welfare and so it is expected that the officials will adopt such reasonable policies, procedures, rules, and regulations as may be necessary, within the authority granted by law, and in so doing shall make appropriate use of recommended standards developed by recognized official groups to ensure a desirable level of uniformity throughout the state and with other states. Such uniformity is especially important in the use and application of uniform signs, signals, and markings.

It is expected, further, that the officials will cooperate with each other where such cooperation is essential, and not otherwise prescribed by law. Moreover, there is also need for more effective coordination of activities among all branches and levels of government in carrying out their respective traffic safety responsibilities, including the governor’s office, the state legislative assembly and city councils, the administrative, enforcement, and judicial officials of the state and its political subdivisions. In all matters of mutual concern, and where appropriate, cooperation is also encouraged among state officials, officials of other states and the federal government, and other responsible groups, both public and private.

Highway transportation is a dynamic force in our society and is influenced by new developments and changing public needs. To keep abreast of foreseeable adjustments, it is expected that the officials will engage in such research and planning as may be necessary and as may be provided for in this title. Such efforts should be conducted in cooperation with all interested public and private groups, and directed towards the development of realistic traffic accident prevention programs to guide legislative decisions and enlist public support in meeting immediate and potential needs.

In keeping with the policies herein enunciated, it is the intent of the legislative assembly to equip each function with the necessary authority to maintain an adequate level of performance in all functions concerned with the ownership and use of motor vehicles, as they are established in title 39, consistent with the expanding needs of highway transportation, in order to protect the public safety, promote the general welfare, and advance the economy of the state.

Source:

S.L. 1967, ch. 292, § 1.

Notes to Decisions

Erroneous Driver’s License Suspension.

Driver had no cause of action arising from an erroneous license suspension; clerks of court had no authority under N.D.C.C. tit. 39 to suspend licenses, quasi-judicial immunity protected the Director of the North Dakota Department of Transportation pursuant to N.D.C.C. § 32-12.2-02(3)(d), and no private right of action existed against the State under N.D. Const. art. I., § 9 for acts not described in N.D.C.C. § 32-12.2-02(1). Kouba v. State, 2004 ND 186, 687 N.W.2d 466, 2004 N.D. LEXIS 321 (N.D. 2004).

Driver’s license was not suspended according to law because, when the driver did not timely request an administrative hearing, it was error for a hearing officer to conclude the Department of Transportation had no jurisdiction, as the issue was whether that jurisdiction was properly invoked, which it was not, so the license could only be administratively revoked, and it was error to conduct a hearing. Reineke v. NDDOT Dir., 2020 ND 10, 937 N.W.2d 517, 2020 N.D. LEXIS 9 (N.D. 2020).

39-01-01.2. Autonomous vehicle operations.

  1. As used in this section:
    1. “Automated driving system” means hardware and software collectively capable of performing the entire dynamic driving task for the vehicle on a sustained basis when installed on a motor vehicle and engaged regardless of whether it is limited to a specific operational design domain.
    2. “Autonomous vehicle” means a vehicle equipped with an automated driving system.
    3. “Dynamic driving task” means all of the real-time operational and tactical functions required to operate a vehicle in on-road traffic within the vehicle’s specific operational design domain, if any, excluding the strategic functions such as trip scheduling and selection of destinations and waypoints.
    4. “Human driver” means an individual with a valid license to operate a motor vehicle who manually exercises in-vehicle braking, accelerating, steering, and transmission gear selection input devices to operate a vehicle.
    5. “Minimal risk condition” means a low-risk operating mode in which an autonomous vehicle operating without a human driver achieves a reasonably safe state, such as bringing the vehicle to a complete stop, upon experiencing a failure of the vehicle’s automated driving system that renders the vehicle unable to perform the entire dynamic driving task.
    6. “Operational design domain” means a description of the specific operating domain in which an automated driving system is designed to properly operate, including roadway types, speed range, environmental conditions, and other domain constraints.
  2. An autonomous vehicle must be capable of operating in compliance with all applicable federal and state law, except to the extent exempted under applicable federal or state law, and may operate on the public highways of this state in full compliance with all vehicle registration, title, insurance, and all other applicable requirements under this title.
  3. An autonomous vehicle with automated driving systems engaged does not require a human driver to operate on the public highway if the autonomous vehicle is capable of achieving a minimal risk condition in case a system failure occurs which renders the automated driving system unable to perform the entire dynamic driving task relevant to the vehicle’s intended operational design domain.
  4. An individual using an autonomous vehicle is not driving or in actual physical control of the autonomous vehicle and, therefore, is exempt from licensing requirements if:
    1. The automated driving system is completing the entire dynamic driving task; and
    2. The autonomous vehicle is capable of achieving a minimal risk condition if a system failure occurs that renders the automated driving system unable to perform the entire dynamic driving task relevant to the vehicle’s intended operational design domain.
  5. This section may not be construed to modify, limit, or restrict any statutory provision affecting liability, including chapter 26.1-40, 26.1-41, 28-01.3, 32-03.2, or 39-16.1.

Source:

S.L. 2019, ch. 302, § 2, effective August 1, 2019.

39-01-02. Motor vehicles owned or leased by the state to display name on side of vehicles — Exceptions — Penalty.

All motor vehicles owned and operated by the state, except vehicles under the control of the central vehicle management system and the official vehicle for use by the governor, must have displayed on each front door the words NORTH DAKOTA. The words must be in letters four inches [10.16 centimeters] in height. Two and one-half inches [6.35 centimeters] directly below those words there must be printed in letters one and one-half inches [3.81 centimeters] in height the name of the state agency owning or leasing the motor vehicle. The width of the display required by this section must be proportionate to the required height. The color of the lettering must be in clear and sharp contrast to the background. The state auditor shall include in the auditor’s report to the governor and the legislative assembly any instance of noncompliance with this section. The above requirements and the requirements for no smoking signs do not apply to vehicles operated by a state entity that engages in investigatory activities. The central vehicle management system vehicles must display a window decal designed by the director. The state highway patrol and all peace officers of this state shall enforce this section.

Source:

S.L. 1925, ch. 168, §§ 1, 2; 1925 Supp., §§ 2976w1, 2976w2; R.C. 1943, § 39-0102; S.L. 1949, ch. 238, § 1; 1955, ch. 238, § 1; 1957 Supp., § 39-0102; S.L. 1959, ch. 289, § 6; 1963, ch. 266, § 1; 1965, ch. 265, § 1; 1975, ch. 106, § 416; 1977, ch. 329, § 1; 1983, ch. 160, § 4; 1983, ch. 417, § 1; 1989, ch. 356, § 12; 1991, ch. 28, § 18; 1991, ch. 394, § 1; 1991, ch. 592, § 12; 2013, ch. 282, § 1.

39-01-03. Motor vehicle owned by the state, North Dakota art museum, or an International Peace Garden not to be used for private use or in political activities.

A person, officer, or employee of the state or of any department, board, bureau, commission, institution, industry, or other agency of the state, or person, officer, or employee of the North Dakota art museum, or of any entity located upon the international boundary line between the United States of America and Canada used and maintained as a memorial to commemorate the long-existing relationship of peace and good will between the people and the governments of the United States of America and Canada and to further international peace among the nations of the world, may not use or drive any motor vehicle belonging to the state or to any department, board, bureau, commission, institution, industry, or other agency of the state, or person, officer, or employee of the North Dakota art museum, or of any entity located upon the international boundary line between the United States of America and Canada used and maintained as a memorial to commemorate the long-existing relationship of peace and good will between the people and the governments of the United States of America and Canada and to further international peace among the nations of the world, for private use, or while engaged in any political activity.

Source:

S.L. 1939, ch. 184, § 1; R.C. 1943, § 39-0103; S.L. 1949, ch. 238, § 2; 1957 Supp., § 39-0103; S.L. 1989, ch. 356, § 13; 2015, ch. 47, § 20, effective July 1, 2015.

Effective Date.

The 2015 amendment of this section by section 20 of chapter 47, S.L. 2015 became effective July 1, 2015.

Cross-References.

Prohibition against public employees engaging in political activities while on duty, see § 44-08-19.

Notes to Decisions

Emoluments of Office.

The purchase of an automobile for the governor’s use in connection with the performance of his official duties in lieu of payment or reimbursement for the expense of travel merely changed the mode of transportation available to the governor and did not increase the emoluments of his office. State ex rel. Lyons v. Guy, 107 N.W.2d 211, 1961 N.D. LEXIS 57 (N.D. 1961).

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

39-01-04. Political activity defined.

The term “political activity” as used in this chapter includes any form of campaigning or electioneering, such as attending or arranging for political meetings; transporting candidates or workers engaged in campaigning or electioneering; distributing campaign literature, political guide cards, or placards; soliciting or canvassing for campaign funds; transporting electors to the polls on election day; and any other form of political work usually and ordinarily engaged in by state officers and employees during primary and general election campaigns.

Source:

S.L. 1939, ch. 184, § 1; R.C. 1943, § 39-0104.

39-01-05. Expenses not to be collected by state officers or employees engaged in political activity.

A state officer or employee who uses or drives any privately owned motor vehicle while engaged in political activity may not collect or receive from this state any expense moneys for the use or operation of the motor vehicle while engaged in the political activity. A state officer or employee may not collect or receive any traveling expense reimbursement from this state for any time spent engaging in any political activity.

Source:

S.L. 1939, ch. 184, § 2; R.C. 1943, § 39-0105; S.L. 1977, ch. 420, § 2; 2001, ch. 327, § 1.

39-01-06. Collecting or receiving expense money wrongfully — Civil action for recovery — Liability of bond.

Any officer or employee who collects or receives any expense moneys in violation of section 39-01-05 is subject to a suit for the recovery of the funds wrongfully collected or received by that person, and if that person’s office or position is bonded by the state bonding fund, such fund also is liable therefor.

Source:

S.L. 1939, ch. 184, § 3; R.C. 1943, § 39-0106.

39-01-07. Penalty for violation of chapter.

Any person violating any provision of this chapter for which another penalty is not specifically provided is guilty of a class A misdemeanor.

Source:

S.L. 1939, ch. 184, § 3; R.C. 1943, § 39-0107; S.L. 1975, ch. 106, § 417.

Cross-References.

Classification of offenses, penalties, see § 12.1-32-01.

General penalty for violation of title, infraction, see § 39-07-06.

39-01-08. State, political subdivisions, and International Peace Gardens authorized to carry insurance on vehicles — Waiver of immunity to extent only of insurance purchased.

  1. The state or any department, agency, or bureau, as well as any county, city, or other political subdivision including townships, school districts, and park districts, and any entity located upon the international boundary line between the United States of America and Canada used and maintained as a memorial to commemorate the long-existing relationship of peace and good will between the people and the governments of the United States of America and Canada and to further international peace among the nations of the world, using or operating motor vehicles and aircrafts, may carry insurance for their own protection and for the protection of any employees from claims for loss or damage arising out of or by reason of the use or operation of the motor vehicle or aircraft, whether the vehicle or aircraft at the time the loss or damage in question occurred was being operated in a governmental undertaking or otherwise. If a premium savings will result therefrom, the insurance policy may be taken out for more than one year, but in no event beyond a period of five years.
  2. If insurance is purchased pursuant to subsection 1, then the purchaser waives its immunity to suit only to the extent of allowing a determination of liability to the extent of the waiver of the immunity against liability described in subsection 3.
  3. If insurance is purchased pursuant to subsection 1, then the purchaser waives its immunity against liability only to the types of its insurance coverage and only to the extent of the policy limits of the coverage. Provided, the purchaser or its insurance carrier is not liable for claims arising out of the conduct of a ridesharing arrangement, as defined in section 8-02-07.
  4. If any dispute exists concerning the amount or nature of the insurance coverage, the dispute must be tried separately before the main trial determining the claims and damages of the claimant.
  5. This statute confers no right for a claimant to sue the insurer directly.
  6. When liability insurance is carried pursuant to this section or pursuant to section 32-12.1-05, no defense in a negligence action may be raised by the insurance carrier upon the basis of section 39-07-05.

Source:

S.L. 1945, ch. 214, § 1; R.C. 1943, 1957 Supp., § 39-0108; S.L. 1965, ch. 266, § 1; 1967, ch. 244, § 1; 1969, ch. 334, § 1; 1975, ch. 349, § 3; 1981, ch. 91, § 24; 1981, ch. 131, § 9; 1985, ch. 317, § 65; 1989, ch. 356, § 14.

Cross-References.

Political subdivisions may purchase liability insurance, see § 32-12.1-05.

Collateral References.

What is “motor vehicle” or the like within statute waiving governmental immunity as to operation of such vehicle, 77 A.L.R.2d 945.

Governmental vehicles or their operators, 87 A.L.R.2d 1224.

Coverage and exclusions under liability policy issued to municipal corporation or similar governmental body, 23 A.L.R.3d 1282, 30 A.L.R.5th 699.

39-01-08.1. Senior citizens group motor vehicle — Availability of coverage under political subdivision policies.

Any political subdivision may provide for the inclusion of buses, vans, or other motor vehicles used by senior citizens groups to transport members in a motor vehicle insurance policy of the political subdivision. The political subdivision may require payment by a senior citizens group for any increase in the premium rate charged to the political subdivision which is attributable to the coverage provided to that senior citizens group. The political subdivision may provide for a payment procedure to require the payment of any premium or premium portion attributable to the coverage provided for the senior citizens group.

Source:

S.L. 1985, ch. 414, § 1.

39-01-08.2. Senior citizens group motor vehicle — Availability of coverage under state policies.

Except as otherwise provided in this section, any insurance policy providing coverage of state-owned motor vehicles must provide, at the request of a senior citizens group prior to the issuance or renewal of the policy, for the inclusion of buses, vans, or other motor vehicles used by the senior citizens group to transport members. The state agency negotiating the insurance policy may require payment by a senior citizens group for any increase in the premium rate charged to the state agency which is attributable to the coverage provided to that senior citizens group. The state agency shall provide by rule for the payment by the senior citizens group of the premium portion attributable to the group’s coverage under the policy. The state agency may refuse to provide coverage to a senior citizens group if the coverage would hinder the ability of or not allow the state to obtain insurance.

Source:

S.L. 1985, ch. 414, § 2.

39-01-09. Parking meters prohibited.

It is unlawful for the state of North Dakota, its political subdivisions, counties, cities, and the state department of transportation to establish and maintain any mechanical device or devices known as “parking meters”, or by whatever name designated, requiring the deposit therein of coins or tokens for the privilege of parking cars or other vehicles upon the streets and highways in the state of North Dakota. Any and all ordinances and resolutions now existing authorizing the establishment and maintenance of such mechanical devices or parking meters, or by whatever name designated, are hereby declared null and void.

Source:

I.M. June 29, 1948, S.L. 1949, ch. 357, §§ 1, 2; R.C. 1943, 1957 Supp., § 39-0109.

Notes to Decisions

Constitutionality.

This initiated statute does not violate the constitutions of the state or of the United States and its effect is to void and nullify all ordinances of cities inconsistent with its provisions. City of Fargo v. Sathre, 76 N.D. 341, 36 N.W.2d 39, 1949 N.D. LEXIS 60 (N.D. 1949).

39-01-10. Proof of payment of registration fees and taxes.

The director of the department of transportation may require all owners or operators of motor vehicles using the highways of this state or registered in this state to show proof of the payment of all proper taxes and registration fees upon such motor vehicles.

Source:

S.L. 1959, ch. 289, § 1.

39-01-11. Nonresident motor vehicle user — Service upon.

The use and operation by a resident of this state or that person’s agent, or by a nonresident or that person’s agent, of a motor vehicle upon or over the highways of this state must be deemed an appointment by such resident when that person has been absent from this state continuously for six months or more following an accident or by such nonresident at any time, of the director of the department of transportation of this state to be the person’s true and lawful attorney upon whom may be served all legal process in any action or proceeding against the person growing out of the use or operation of the motor vehicle resulting in damages or loss to person or property, whether the damage or loss occurs upon a public highway or upon public or private property, and such use or operation constitutes an agreement that any such process in any action against the person which is so served has the same legal force and effect as if served upon the person personally, or, in case of the person’s death, that such process has the same legal force and effect as if served upon the administrator of the person’s estate. Service of the summons in such case may be made by delivering a copy thereof to the director with a fee of ten dollars.

Source:

S.L. 1935, ch. 174, § 1; R.C. 1943, § 28-0611; S.L. 1951, ch. 202, § 1; 1953, ch. 204, § 1; 1955, ch. 204, § 1; 1957 Supp., § 28-0611; S.L. 1987, ch. 440, § 1.

Notes to Decisions

“Agent” Defined.

The admission of an employee that the car he was driving belonged to a nonresident corporation was sufficient to constitute driver as agent of corporation. Austinson v. Kilpatrick, 82 N.W.2d 388, 1957 N.D. LEXIS 115 (N.D. 1957).

Challenge of Service.

Nonresident corporation could not challenge service on ground that its agent was not acting in course of his employment at the time of accident, but could raise such as a matter of defense at trial. Austinson v. Kilpatrick, 82 N.W.2d 388, 1957 N.D. LEXIS 115 (N.D. 1957).

Liability of Nonresident.

This is a remedial statute providing the procedure for acquiring jurisdiction and does not relate to the question of the liability of the nonresident. Austinson v. Kilpatrick, 82 N.W.2d 388, 1957 N.D. LEXIS 115 (N.D. 1957).

“Nonresident” Defined.

Word “nonresident” includes every nonresident, whether a corporation or an individual. Austinson v. Kilpatrick, 82 N.W.2d 388, 1957 N.D. LEXIS 115 (N.D. 1957).

N.D.C.C. § 39-01-11 applies only to nonresidents or residents continuously absent from the state for six months or more post-accident, and for purposes of this statute, death does not make a resident absent from the state. Wilkens v. Westby, 2019 ND 186, 931 N.W.2d 229, 2019 N.D. LEXIS 187 (N.D. 2019).

District court properly concluded that a resident driver could not initiate an action by serving the director of the Department of Transportation under N.D.C.C. § 39-01-11 when the other driver was a resident of North Dakota and died in-state as a result of the vehicular accident precipitating the negligence claim. Wilkens v. Westby, 2019 ND 186, 931 N.W.2d 229, 2019 N.D. LEXIS 187 (N.D. 2019).

Purpose of Statute.

Purpose of this statute is to give local residents access to local courts in actions against nonresident tort-feasors. Austinson v. Kilpatrick, 82 N.W.2d 388, 1957 N.D. LEXIS 115 (N.D. 1957).

Tolling of Limitations.

The legislature has not expressly provided for an exception to the provisions of N.D.C.C. § 28-01-32 tolling the statute of limitations on account of a defendant’s absence from this state, and such an exception is not reflected in this section and N.D.C.C. § 39-01-12. Loken v. Magrum, 380 N.W.2d 336, 1986 N.D. LEXIS 244 (N.D. 1986).

Use and Operation of Vehicle.

In action involving motor vehicle accident, where the vehicle in question was neither used nor operated by nonresident corporation, this section could not be used to make service upon such corporation. Fisher v. Mon Dak Truck Lines, 166 N.W.2d 371, 1969 N.D. LEXIS 111 (N.D. 1969), decided prior to the adoption of Rule 4, N.D.R.Civ.P.

Where plaintiff, a North Dakota resident, was injured while unloading a truck belonging to a foreign corporation and the injuries were not the proximate result of any defective condition of the truck, and where such truck had arrived at its destination and was parked at the curb at the time of the injury, the injury did not grow “out of the use or operation” of the truck within the meaning of this section and therefore service of process upon the highway commissioner was not sufficient service upon the defendant. Langness v. Fernstrom Storage & Van Co., 253 F. Supp. 879, 1966 U.S. Dist. LEXIS 7773 (D.N.D. 1966), explained, National Farmers Union Property & Casualty Co. v. Gibbons, 338 F. Supp. 430, 1972 U.S. Dist. LEXIS 15492 (D.N.D. 1972).

“Use” in Automobile Liability Policy.

Using a stopped vehicle for a gunrest is not “use” contemplated and covered by policy providing for payment of damages to one injured arising out of the ownership, maintenance or use of the owned automobile. National Farmers Union Property & Casualty Co. v. Gibbons, 338 F. Supp. 430, 1972 U.S. Dist. LEXIS 15492 (D.N.D. 1972).

DECISIONS UNDER PRIOR LAW

Residence.

The term “residence”, as employed in R.C. 1943, section 28-0611, prior to its amendment, was synonymous with “domicile”. Northwestern Mortgage & Sec. Co. v. Noel Constr. Co., 71 N.D. 256, 300 N.W. 28, 1941 N.D. LEXIS 163 (N.D. 1941).

Resident Operator.

Statute, prior to amendment, did not apply to owner and operator of motor vehicle who had legal residence or domicile in this state at time of accident. Northwestern Mortgage & Sec. Co. v. Noel Constr. Co., 71 N.D. 256, 300 N.W. 28, 1941 N.D. LEXIS 163 (N.D. 1941).

Collateral References.

Construction and application of provisions of federal Motor Carrier Act requiring designation of agent for service of process, 8 A.L.R.2d 814.

Constitutionality and construction of statute authorizing constructive or substituted service of process on foreign representative of deceased nonresident driver of motor vehicle, arising out of accident occurring in state, 18 A.L.R.2d 544.

What is “motor vehicle” or the like within statute providing for constructive or substituted service of process on nonresident motorist, 48 A.L.R.2d 1283.

Who is subject to constructive or substituted service of process under statute providing for such service on nonresident motorist, 53 A.L.R.2d 1164.

39-01-12. Mailing notice to defendant upon service of nonresident motor vehicle user.

Within ten days after service of summons as provided in section 39-01-11, notice of such service together with a copy of the summons and complaint in the action must be sent by the plaintiff to the defendant at the defendant’s last-known address by registered or certified mail with return receipt requested, and proof of such mailing must be attached to the summons.

Source:

S.L. 1935, ch. 174, § 1; R.C. 1943, § 28-0612.

Notes to Decisions

Affidavit of Mailing.

Where plaintiff, who was involved in automobile accident with nonresident, submitted no affidavit of mailing showing that he deposited in the mail, with postage prepaid, a copy of the summons and complaint and proof of service upon the commissioner, but rather, submitted only a photocopy of an envelope as proof of mailing and when he submitted his motion to reconsider, attached the original envelope, its contents, and an affidavit verifying the contents of the returned envelope, these papers, without an affidavit, did not constitute proof of mailing as contemplated by the statute. Messmer v. Olstad, 529 N.W.2d 873, 1995 N.D. LEXIS 58 (N.D. 1995).

Mandatory Provisions.

The provisions of this section are mandatory and must be complied with in order that a trial court may obtain personal jurisdiction by statute over a nonresident defendant. Loken v. Magrum, 364 N.W.2d 79, 1985 N.D. LEXIS 266 (N.D. 1985).

Tolling of Limitations.

The legislature has not expressly provided for an exception to the provisions of N.D.C.C. § 28-01-32 tolling the statute of limitations on account of a defendant’s absence from this state, and such an exception is not reflected in N.D.C.C. § 39-01-11 and this section. Loken v. Magrum, 380 N.W.2d 336, 1986 N.D. LEXIS 244 (N.D. 1986).

DECISIONS UNDER PRIOR LAW

Duty of Plaintiff.

Although 1943 code revisors omitted the phrase “by the plaintiff”, contained in prior statute, plaintiff still had duty of mailing copy of summons and complaint to the defendant. King v. Menz, 75 N.W.2d 516, 1956 N.D. LEXIS 103 (N.D. 1956).

39-01-13. Director to keep record of process received for nonresident motor vehicle users.

The director shall keep a record of all process served upon the director under the provisions of section 39-01-11. Such record must show the day and hour of service. If any defendant served under section 39-01-11 has made proof of financial responsibility by filing a certificate of insurance coverage, as provided in section 39-16.1-09, the director shall mail a copy of such summons and complaint to the insurance carrier named in such certificate.

Source:

S.L. 1935, ch. 174, § 2; R.C. 1943, § 28-0613; S.L. 1951, ch. 202, § 2; 1957 Supp., § 28-0613; S.L. 1979, ch. 187, § 74; 1979, ch. 405, § 1.

39-01-14. Protecting rights of defendant served as nonresident motor vehicle user.

When service has been made as provided in section 39-01-11, the court, before entering default judgment, or at any stage of the proceeding, may order such continuance as may be necessary to afford the defendant reasonable opportunity to defend any action against the defendant.

Source:

S.L. 1935, ch. 174, § 2; R.C. 1943, § 28-0614.

39-01-15. Parking privileges for mobility impaired — Certificate — Revocation — Continuing appropriation — Penalty. [Effective through August 31, 2022]

  1. A mobility-impaired individual who displays prominently upon a motor vehicle parked by that individual or under that individual’s direction and for that individual’s use, the distinguishing certificate specified in subsection 4, license plates issued under section 39-04-10.2, or a disabled veteran plate issued under subdivision j of subsection 2 of section 39-04-18 is entitled to courtesy in the parking of the motor vehicle. However, any municipality may prohibit, by ordinance, parking on any highway for the purpose of creating a fire lane or to provide for the accommodation of heavy traffic during morning and afternoon rush hours. The privileges extended to a mobility-impaired individual do not apply on a highway if parking is prohibited.
  2. A mobility-impaired individual as used in this section includes an individual who uses portable oxygen; requires personal assistance or the use of crutches, a wheelchair, or a walker to walk two hundred feet [60.96 meters] without rest; is restricted by cardiac, pulmonary, or vascular disease from walking two hundred feet [60.96 meters] without rest; has a forced expiratory volume of less than one liter for one second or an arterial oxygen tension of less than sixty millimeters of mercury on room air while at rest and is classified III or IV by standards for cardiac disease set by the American heart association; has an orthopedic, neurologic, or other medical condition that makes it impossible for the person to walk two hundred feet [60.96 meters] without assistance or rest; or is a disabled veteran issued a plate under subdivision j of subsection 2 of section 39-04-18.
  3. Repealed by S.L. 1989, ch. 319, § 6.
  4. The director may issue a special identifying certificate to any mobility-impaired applicant upon submission by the applicant of a completed application and a written or electronic statement issued by a qualified physician, physician assistant, chiropractor, or an advanced practice registered nurse to the director that the applicant is a mobility-impaired person within the criteria of subsection 2. The director shall waive the requirement for a written or electronic statement from a qualified physician, physician assistant, chiropractor, or an advanced practice registered nurse if the applicant has previously submitted an application containing a certification from a qualified physician, physician assistant, chiropractor, or an advanced practice registered nurse that the applicant’s impairment is not reversible. The application must include the information required by the director. The physician’s, physician assistant’s, chiropractor’s, or advanced practice registered nurse’s statement must describe how the impairment limits the applicant’s mobility and daily life functions of the applicant. The certificate is valid for a period, not to exceed three years, as determined by the director. A physician, physician assistant, chiropractor, or an advanced practice registered nurse who provides a false statement that an individual is mobility impaired for the purpose of that individual obtaining a certificate under this subsection is guilty of an infraction for which a minimum fine of one hundred dollars must be imposed. A certificate issued under this subsection must be nine and one-half inches [24.13 centimeters] in height and three inches [7.62 centimeters] in width and must bear, in white on blue, the internationally accepted symbol of access for the mobility impaired. The certificate must bear the expiration date and registration number assigned by the director. The director shall adopt rules governing the issuance of the certificate. A temporary certificate, valid for an initial period not to exceed three months, may be issued by the director for a fee of three dollars upon application supported by a physician’s, physician assistant’s, chiropractor’s, or an advanced practice registered nurse’s statement. The director may issue a maximum of one additional temporary certificate for a fee of three dollars. The temporary certificate may be extended an additional period, not to exceed three months, upon application supported by a physician’s, physician assistant’s, chiropractor’s, or an advanced practice registered nurse’s statement that the extension is warranted. Temporary certificates must be the same size as other certificates issued under this section and must be white on red. The director may issue a maximum of one additional certificate, if the applicant does not have number plates issued under section 39-04-10.2 or under subdivision j of subsection 2 of section 39-04-18, to a mobility-impaired individual to whom a certificate has been issued under this subsection. The additional certificates may only be used by or on behalf of the mobility-impaired individual.
  5. Except as provided in this subsection, two dollars of each fee for issuance of a certificate and one dollar of each fee for issuance of an additional certificate under this section must be deposited in the state highway department fund for purposes of defraying the cost of issuing the certificate. The rest of the fee, and the five dollar fee received for the issuance of an additional certificate under subsection 4, must be deposited in the state treasury and credited to the state rehabilitation council fund. The fees deposited in the fund are hereby appropriated on a continuing basis to the department of human services for use by the state rehabilitation council to accomplish the council’s statutory duties provided under section 50-06.1-16. If a certificate is lost, mutilated, or destroyed, the individual to whom the certificate was issued is entitled to a replacement. The individual shall furnish proof satisfactory to the director that the certificate has been lost, mutilated, or destroyed, and shall pay a replacement fee of three dollars.
  6. A certificate issued under this section must be hung from the rearview mirror of the motor vehicle whenever the vehicle is occupying a space reserved for the mobility impaired and is being used by a mobility-impaired individual or another individual for the purposes of transporting the mobility-impaired individual. No part of the certificate may be obscured. A fee of five dollars may be imposed for a violation of this subsection.
  7. An applicant may appeal a decision denying issuance of the certificate to the director. Written notice of the appeal must be received within ten business days following receipt by the applicant of notice of denial. The applicant has sixty days to provide additional supportive material to the director for purposes of deciding the appeal. The director shall affirm or reverse the decision to deny issuance of the certificate within thirty days after receipt of the supportive material. Written notice of the decision must be given to the applicant.
  8. If a law enforcement officer finds that the certificate is being improperly used, the officer may report to the director any violation and the director may, in the director’s discretion, remove the privilege. An individual who is not mobility impaired and who exercises the privileges granted a mobility-impaired individual under subsection 1 is guilty of an infraction for which a fine of one hundred dollars must be imposed.
    1. If a public or private entity designates parking spaces for accessible parking, the spaces must comply with the requirements of the Americans with Disabilities Accessibility Guidelines for Buildings and Facilities as contained in the appendix to title 28, Code of Federal Regulations, part 36 [28 CFR 36] and must be indicated by blue paint on the curb or edge of the paved portion of the street or parking lot adjacent to the space. In addition to blue paint, each reserved space must be indicated by a sign bearing the international symbol of accessibility for the mobility impaired. The sign must indicate that unauthorized use of the space is a nonmoving violation for which a fee of one hundred dollars must be imposed.
    2. For any event, a public or a private entity temporarily may reserve additional accessible parking spaces for use by motor vehicles operated by a mobility-impaired individual. In that case, each temporarily reserved space must be indicated by a sign bearing the international symbol of accessibility for the mobility impaired at least four hours before the event.
    3. A parking space clearly identified as reserved for the mobility impaired is considered designated and reserved for the mobility impaired and is sufficient basis for the enforcement of this section if the parking space has two of the following requirements:
      1. Blue paint on the curb or edge of the paved portion of the street or parking lot adjacent to the space;
      2. A sign bearing the international symbol of accessibility for the mobility impaired; or
      3. Notice that unauthorized use of the space is a nonmoving violation for which a fee of one hundred dollars must be imposed.
    4. Except for a temporarily reserved parking space for the mobility impaired, a sign posted must be immovable.
    5. A law enforcement officer shall enforce this section in any parking lot or parking facility, whether publicly or privately owned.
  9. If the designated parking spaces for mobility-impaired individuals are occupied or inaccessible, a motor vehicle displaying the distinguishing certificate specified in subsection 4, license plates issued under section 39-04-10.2, or a disabled veteran plate issued under subdivision j of subsection 2 of section 39-04-18 may park at an angle and occupy two standard parking spaces.
  10. An individual may not stop, stand, or park any vehicle in any designated parking space that is reserved for the mobility impaired unless the vehicle displays a mobility-impaired identification certificate issued by the director to a mobility-impaired individual. A mobility-impaired individual may not permit the use of a certificate issued under this section by an individual who is not mobility impaired when that use is not in connection with the transport of the mobility-impaired individual. The registered owner of a vehicle may not allow that vehicle to be used in a manner that violates this subsection. Proof of intent is not required to prove a registered owner’s violation of this subsection. The registered owner, however, may be excused from a violation if the owner provides the citing authority with the name and address of the individual operating the vehicle at the time of the violation. A vehicle may temporarily use a space reserved for a mobility-impaired individual without a mobility-impaired certificate for the purpose of loading and unloading a mobility-impaired individual. A violation of this subsection is a nonmoving violation for which a fee of one hundred dollars must be imposed. Notwithstanding section 29-27-02.1, fifty percent of the fee imposed and collected under this subsection is appropriated on a continuing basis to the state rehabilitation council for the development of competitive and integrated employment opportunities.
  11. A motor vehicle licensed in another state which displays a special authorized vehicle designation issued by the licensing authority of that state for vehicles used in the transportation of a mobility-impaired individual must be accorded the same privilege provided in this section for similar vehicles licensed in this state if the laws of the other state provide the same privileges to North Dakota motor vehicles displaying the special identifying certificate authorized in this section.
  12. An entity that violates the requirements of subsection 9 is guilty of an infraction if the entity does not comply with subsection 9 within sixty days after receiving official notification of the violation.
  13. The department shall issue a mobility-impaired parking permit for a vehicle owned and operated by care providers licensed by the state, veterans-related organizations, and other entities that regularly transport mobility-impaired individuals for use by those providers and entities to park in designated parking spaces while transporting mobility-impaired individuals.

Source:

S.L. 1967, ch. 293, §§ 1 to 4; 1975, ch. 106, § 418; 1977, ch. 330, § 1; 1979, ch. 406, § 1; 1981, ch. 379, § 1; 1987, ch. 441, § 1; 1989, ch. 319, §§ 2, 6; 1989, ch. 443, § 1; 1991, ch. 395, § 1; 1991, ch. 396, § 1; 1993, ch. 261, § 2; 1993, ch. 376, § 1; 1995, ch. 363, § 1; 1995, ch. 458, § 1; 2001, ch. 328, § 1; 2005, ch. 322, § 1; 2013, ch. 283, § 1; 2013, ch. 373, § 1; 2015, ch. 258, § 1, effective August 1, 2015; 2017, ch. 335, § 1, effective August 1, 2017; 2017, ch. 257, § 1, effective August 1, 2017; 2019, ch. 303, § 1, effective July 1, 2019; 2019, ch. 304, §§ 1, 2, effective August 1, 2019.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 258, S.L. 2015 became effective August 1, 2015.

Note.

Section 39-01-15 was amended 3 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Sections 1 and 2 of Chapter 304, Session Laws 2019, House Bill 1135; and Section 1 of Chapter 303, Session Laws 2019, Senate Bill 2119.

Section 39-01-15 was amended 2 times by the 2017 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 257, Session Laws 2017, House Bill 1211; and Section 1 of Chapter 335, Session Laws 2017 House Bill 1135.

39-01-15. Parking privileges for mobility impaired — Certificate — Revocation — Continuing appropriation — Penalty. [Effective September 1, 2022]

  1. A mobility-impaired individual who displays prominently upon a motor vehicle parked by that individual or under that individual’s direction and for that individual’s use, the distinguishing certificate specified in subsection 4, license plates issued under section 39-04-10.2, or a disabled veteran plate issued under subdivision j of subsection 2 of section 39-04-18 is entitled to courtesy in the parking of the motor vehicle. However, any municipality may prohibit, by ordinance, parking on any highway for the purpose of creating a fire lane or to provide for the accommodation of heavy traffic during morning and afternoon rush hours. The privileges extended to a mobility-impaired individual do not apply on a highway if parking is prohibited.
  2. A mobility-impaired individual as used in this section includes an individual who uses portable oxygen; requires personal assistance or the use of crutches, a wheelchair, or a walker to walk two hundred feet [60.96 meters] without rest; is restricted by cardiac, pulmonary, or vascular disease from walking two hundred feet [60.96 meters] without rest; has a forced expiratory volume of less than one liter for one second or an arterial oxygen tension of less than sixty millimeters of mercury on room air while at rest and is classified III or IV by standards for cardiac disease set by the American heart association; has an orthopedic, neurologic, or other medical condition that makes it impossible for the person to walk two hundred feet [60.96 meters] without assistance or rest; or is a disabled veteran issued a plate under subdivision j of subsection 2 of section 39-04-18.
  3. Repealed by S.L. 1989, ch. 319, § 6.
  4. The director may issue a special identifying certificate to any mobility-impaired applicant upon submission by the applicant of a completed application and a written or electronic statement issued by a qualified physician, physician assistant, chiropractor, or an advanced practice registered nurse to the director that the applicant is a mobility-impaired person within the criteria of subsection 2. The director shall waive the requirement for a written or electronic statement from a qualified physician, physician assistant, chiropractor, or an advanced practice registered nurse if the applicant has previously submitted an application containing a certification from a qualified physician, physician assistant, chiropractor, or an advanced practice registered nurse that the applicant’s impairment is not reversible. The application must include the information required by the director. The physician’s, physician assistant’s, chiropractor’s, or advanced practice registered nurse’s statement must describe how the impairment limits the applicant’s mobility and daily life functions of the applicant. The certificate is valid for a period, not to exceed three years, as determined by the director. A physician, physician assistant, chiropractor, or an advanced practice registered nurse who provides a false statement that an individual is mobility impaired for the purpose of that individual obtaining a certificate under this subsection is guilty of an infraction for which a minimum fine of one hundred dollars must be imposed. A certificate issued under this subsection must be nine and one-half inches [24.13 centimeters] in height and three inches [7.62 centimeters] in width and must bear, in white on blue, the internationally accepted symbol of access for the mobility impaired. The certificate must bear the expiration date and registration number assigned by the director. The director shall adopt rules governing the issuance of the certificate. A temporary certificate, valid for an initial period not to exceed three months, may be issued by the director for a fee of three dollars upon application supported by a physician’s, physician assistant’s, chiropractor’s, or an advanced practice registered nurse’s statement. The director may issue a maximum of one additional temporary certificate for a fee of three dollars. The temporary certificate may be extended an additional period, not to exceed three months, upon application supported by a physician’s, physician assistant’s, chiropractor’s, or an advanced practice registered nurse’s statement that the extension is warranted. Temporary certificates must be the same size as other certificates issued under this section and must be white on red. The director may issue a maximum of one additional certificate, if the applicant does not have number plates issued under section 39-04-10.2 or under subdivision j of subsection 2 of section 39-04-18, to a mobility-impaired individual to whom a certificate has been issued under this subsection. The additional certificates may only be used by or on behalf of the mobility-impaired individual.
  5. Except as provided in this subsection, two dollars of each fee for issuance of a certificate and one dollar of each fee for issuance of an additional certificate under this section must be deposited in the state highway department fund for purposes of defraying the cost of issuing the certificate. The rest of the fee, and the five dollar fee received for the issuance of an additional certificate under subsection 4, must be deposited in the state treasury and credited to the state rehabilitation council fund. The fees deposited in the fund are hereby appropriated on a continuing basis to the department of health and human services for use by the state rehabilitation council to accomplish the council’s statutory duties provided under section 50-06.1-16. If a certificate is lost, mutilated, or destroyed, the individual to whom the certificate was issued is entitled to a replacement. The individual shall furnish proof satisfactory to the director that the certificate has been lost, mutilated, or destroyed, and shall pay a replacement fee of three dollars.
  6. A certificate issued under this section must be hung from the rearview mirror of the motor vehicle whenever the vehicle is occupying a space reserved for the mobility impaired and is being used by a mobility-impaired individual or another individual for the purposes of transporting the mobility-impaired individual. No part of the certificate may be obscured. A fee of five dollars may be imposed for a violation of this subsection.
  7. An applicant may appeal a decision denying issuance of the certificate to the director. Written notice of the appeal must be received within ten business days following receipt by the applicant of notice of denial. The applicant has sixty days to provide additional supportive material to the director for purposes of deciding the appeal. The director shall affirm or reverse the decision to deny issuance of the certificate within thirty days after receipt of the supportive material. Written notice of the decision must be given to the applicant.
  8. If a law enforcement officer finds that the certificate is being improperly used, the officer may report to the director any violation and the director may, in the director’s discretion, remove the privilege. An individual who is not mobility impaired and who exercises the privileges granted a mobility-impaired individual under subsection 1 is guilty of an infraction for which a fine of one hundred dollars must be imposed.
    1. If a public or private entity designates parking spaces for accessible parking, the spaces must comply with the requirements of the Americans with Disabilities Accessibility Guidelines for Buildings and Facilities as contained in the appendix to title 28, Code of Federal Regulations, part 36 [28 CFR 36] and must be indicated by blue paint on the curb or edge of the paved portion of the street or parking lot adjacent to the space. In addition to blue paint, each reserved space must be indicated by a sign bearing the international symbol of accessibility for the mobility impaired. The sign must indicate that unauthorized use of the space is a nonmoving violation for which a fee of one hundred dollars must be imposed.
    2. For any event, a public or a private entity temporarily may reserve additional accessible parking spaces for use by motor vehicles operated by a mobility-impaired individual. In that case, each temporarily reserved space must be indicated by a sign bearing the international symbol of accessibility for the mobility impaired at least four hours before the event.
    3. A parking space clearly identified as reserved for the mobility impaired is considered designated and reserved for the mobility impaired and is sufficient basis for the enforcement of this section if the parking space has two of the following requirements:
      1. Blue paint on the curb or edge of the paved portion of the street or parking lot adjacent to the space;
      2. A sign bearing the international symbol of accessibility for the mobility impaired; or
      3. Notice that unauthorized use of the space is a nonmoving violation for which a fee of one hundred dollars must be imposed.
    4. Except for a temporarily reserved parking space for the mobility impaired, a sign posted must be immovable.
    5. A law enforcement officer shall enforce this section in any parking lot or parking facility, whether publicly or privately owned.
  9. If the designated parking spaces for mobility-impaired individuals are occupied or inaccessible, a motor vehicle displaying the distinguishing certificate specified in subsection 4, license plates issued under section 39-04-10.2, or a disabled veteran plate issued under subdivision j of subsection 2 of section 39-04-18 may park at an angle and occupy two standard parking spaces.
  10. An individual may not stop, stand, or park any vehicle in any designated parking space that is reserved for the mobility impaired unless the vehicle displays a mobility-impaired identification certificate issued by the director to a mobility-impaired individual. A mobility-impaired individual may not permit the use of a certificate issued under this section by an individual who is not mobility impaired when that use is not in connection with the transport of the mobility-impaired individual. The registered owner of a vehicle may not allow that vehicle to be used in a manner that violates this subsection. Proof of intent is not required to prove a registered owner’s violation of this subsection. The registered owner, however, may be excused from a violation if the owner provides the citing authority with the name and address of the individual operating the vehicle at the time of the violation. A vehicle may temporarily use a space reserved for a mobility-impaired individual without a mobility-impaired certificate for the purpose of loading and unloading a mobility-impaired individual. A violation of this subsection is a nonmoving violation for which a fee of one hundred dollars must be imposed. Notwithstanding section 29-27-02.1, fifty percent of the fee imposed and collected under this subsection is appropriated on a continuing basis to the state rehabilitation council for the development of competitive and integrated employment opportunities.
  11. A motor vehicle licensed in another state which displays a special authorized vehicle designation issued by the licensing authority of that state for vehicles used in the transportation of a mobility-impaired individual must be accorded the same privilege provided in this section for similar vehicles licensed in this state if the laws of the other state provide the same privileges to North Dakota motor vehicles displaying the special identifying certificate authorized in this section.
  12. An entity that violates the requirements of subsection 9 is guilty of an infraction if the entity does not comply with subsection 9 within sixty days after receiving official notification of the violation.
  13. The department shall issue a mobility-impaired parking permit for a vehicle owned and operated by care providers licensed by the state, veterans-related organizations, and other entities that regularly transport mobility-impaired individuals for use by those providers and entities to park in designated parking spaces while transporting mobility-impaired individuals.

Source:

S.L. 1967, ch. 293, §§ 1 to 4; 1975, ch. 106, § 418; 1977, ch. 330, § 1; 1979, ch. 406, § 1; 1981, ch. 379, § 1; 1987, ch. 441, § 1; 1989, ch. 319, §§ 2, 6; 1989, ch. 443, § 1; 1991, ch. 395, § 1; 1991, ch. 396, § 1; 1993, ch. 261, § 2; 1993, ch. 376, § 1; 1995, ch. 363, § 1; 1995, ch. 458, § 1; 2001, ch. 328, § 1; 2005, ch. 322, § 1; 2013, ch. 283, § 1; 2013, ch. 373, § 1; 2015, ch. 258, § 1, effective August 1, 2015; 2017, ch. 335, § 1, effective August 1, 2017; 2017, ch. 257, § 1, effective August 1, 2017; 2019, ch. 303, § 1, effective July 1, 2019; 2019, ch. 304, §§ 1, 2, effective August 1, 2019; 2021, ch. 352, § 352, effective September 1, 2022.

39-01-16. Hearing on alleged violations.

Any person having information that a licensed dealer has violated any provisions of this title may file with the director an affidavit specifically setting forth such violation. Upon receipt of such affidavit, the director shall investigate the violation alleged in the affidavit. If, after investigation, the director determines that the dealer’s license will be revoked or suspended, a notice of intent to revoke or suspend the license must be mailed to the dealer by certified mail. The notice must provide the dealer with an opportunity for a hearing prior to the effective date of the license revocation or suspension. A record of such hearings must be made by stenographic notes or use of an electronic recording device.

If after such hearing the director finds the violation charged in the affidavit has been proved by the evidence, an order must be served on the licensee revoking or suspending the dealer’s license for a period of time to be determined by the director. Such action may be appealed to the district court by following the appeal procedure set forth in chapter 28-32, except that the order revoking or suspending the license is ineffective while the appeal is pending.

The director has the power to appoint an administrative hearing officer to conduct the hearing, administer oaths, and subpoena and examine witnesses. The administrative hearing officer shall submit the findings to the director for consideration and final decision.

Any witness called by the prosecution, except a peace officer while on duty, shall receive the same fees and mileage as a witness in a civil case in district court.

Source:

S.L. 1985, ch. 415, § 1; 1995, ch. 364, § 1; 2001, ch. 329, § 1.

Cross-References.

Suspension or revocation of dealer’s license, grounds, see § 39-22-04.

39-01-17. Authority to administer oaths and certify copies of records — Admissibility of records.

  1. Officers and employees of the department designated by the director are, for the purpose of administering the motor vehicle laws, authorized to administer oaths and acknowledge signatures, and must do so without fee.
  2. A certified copy of any record, electronic or original, maintained by the director relative to title 39 is admissible in any judicial proceedings or administrative hearing in the same manner as the original of the record.
  3. In response to a subpoena, or upon the request of any appropriate government or judicial official, the director shall provide a duly certified copy of any book, paper, entry, record, or other document of that agency. This certified copy may consist of a photocopy or computer printout of the requested document certified by the director or a duly authorized representative.

Source:

S.L. 1987, ch. 442, § 1; 1993, ch. 375, § 2.

39-01-18. Dealer bond cancellation — Reinstatement — Revocation of license.

Any dealer required to be bonded by the provisions of title 39 whose bond is canceled by the surety company shall file a new bond with the department before the effective date of the cancellation. The effective date of a bond cancellation must be thirty days after notification by certified mail to the department from the surety company. Any dealer failing to maintain a current surety bond with the department shall return the dealer’s license and dealer’s plates to the department on or before the effective date of the cancellation. Failure to return the dealer’s license or dealer’s plates results in automatic revocation by operation of law. The department may order the superintendent to take possession of any dealer’s license or dealer’s plates not returned to the department as required in this section. The department shall reinstate the dealer’s license and dealer’s plates if a new bond is received within thirty days of the revocation.

Source:

S.L. 1989, ch. 444, § 1.

39-01-19. Permits for vending machines at rest areas. [Effective through August 31, 2022]

A vending machine that allows access to a tobacco product may not be placed or remain upon a rest area, and any other vending machine may not be placed or remain upon a rest area under the supervision of the director without a permit from the director. The director shall charge a fee for the issuance of a vending machine permit. The amount of the permit fee must relate to the department’s actual cost of administration, annual review, and enforcement of the permit process, but may not exceed twenty-five dollars annually. The permit process may not be affected by the content of a publication. The director shall require permittees to comply with appropriate indemnification, insurance, and other risk management provisions of the permit. Vending machines must be secured in a manner that prevents tipping and moving, deters theft, and leaves state property undamaged. Plexiglass, safety glass, or other shatter-resistant materials must be employed in windows or displays. All vending machines must be sufficiently enclosed to prevent the distributed product from inadvertently being removed or blown from the machine or weathered by the elements. Stolen or damaged vending machines do not result in liability to the department and must be repaired, restored, or replaced within thirty calendar days. All cashboxes and accesses to cashboxes must be metal and securely locked in place. All vending machines must be placed in a well-lighted area visible from the rest area roadway. All vending machines must be placed on a route allowing parallel access by motorized or standard wheelchairs, with at least sixty-six inches [1676.400 millimeters] of clear width. A vending machine may not have a component or function used by the public which requires more than five pounds [2.268 kilograms] of force to be applied. The height of controls, doors, or access points necessary for use by the public may not exceed sixty inches [1524 millimeters]. The director may determine the maximum number of vending machine placements at a given rest area. Priority must be given to vending machines placed pursuant to the Randolph Sheppard Act [Pub. L. 74-732; 49 Stat. 1559; 20 U.S.C. 107], as administered by the vocational rehabilitation division of the department of human services under section 50-06.1-13. When, after allowing for the placement of vending machines pursuant to the Randolph Sheppard Act [Pub. L. 74-732; 49 Stat. 1559; 20 U.S.C. 107], the director determines that the number of permit applications for a particular rest area would exceed the remaining available space or would prevent compliance with this section or other law, the director shall grant permits by means of a lottery, with permits allocated pro rata according to the number of applications for each type. The permittee is solely responsible to ensure that any trash, wrapping, boxes, or debris, generated when stocking or servicing vending machines is not left on or at the rest area. The permittee is solely responsible for all installation, maintenance, replacement, inspection, access area cleaning, and stocking of vending machines. Vandalism and graffiti on vending machines must be repaired or removed within fourteen days of written notice by the director. The permittee must inspect and stock vending machines as needed, but at least monthly, to provide adequate service to the public. Vending machines removed for repair or for other reasons must be restored or replaced by the permittee within thirty days. Vending machines in violation of this section or any other applicable law may be removed by the director fourteen days after notice of violation is provided and without liability to the director. Vending machines judged by the director to pose a risk to safety may be removed immediately without liability to the director and without prior notice to the permittee. The director shall retain any removed vending machines for thirty days to allow retrieval by the permittee, after compensation to the director for removal costs. The director may dispose of or sell machines not retrieved within thirty days of removal, but removal costs must be satisfied only to the extent of proceeds received by the director. The director has a cause of action to recover any deficiency, attorney’s fees, and litigation expenses. The director, upon the determination that a rest area must be closed for a period of greater than thirty days, may order the permittee, at the permittee’s expense, to remove all vending machines in a manner that does not damage state property, or remove all product and money and place upon the vending machine a prominent notice that all product and money have been removed. Should the director determine that removal of vending machines is necessary to conduct repairs, construction, surveys, or other duties of the department, the permittee, at the permittee’s expense, shall remove all vending machines in a manner that does not damage state property, upon fourteen days’ notice. The current address and telephone number where customer service or business is conducted by the permittee must be legibly and prominently posted upon the vending machine. The director shall cancel the permit should the permittee remove vending machines, except as provided in this section. The cost of any removal must be borne by the permittee. The permittee, at the permittee’s own expense, must restore the site the machine formerly occupied to the satisfaction of the director. For purposes of this section, “vending machine” means any device that allows access to a newspaper, magazine, beverage, concession, or other item for public consumption or use. For purposes of this section, “permittee” means any person or organization, including any corporation, partnership, firm, or any other legal entity capable of owning property and transacting business, which has applied for a permit under this chapter. For purposes of this section, “notice” consists of a written communication and must be deemed to have occurred within seventy-two hours of mailing, if mailed within North Dakota, or one hundred twenty hours of mailing, if mailed outside North Dakota. “Notice” to a vendor of the condition of a vending machine also occurs if a period of time greater than the required inspection interval for the vending machines has passed.

Source:

S.L. 1999, ch. 331, § 1.

39-01-19. Permits for vending machines at rest areas. [Effective September 1, 2022]

A vending machine that allows access to a tobacco product may not be placed or remain upon a rest area, and any other vending machine may not be placed or remain upon a rest area under the supervision of the director without a permit from the director. The director shall charge a fee for the issuance of a vending machine permit. The amount of the permit fee must relate to the department’s actual cost of administration, annual review, and enforcement of the permit process, but may not exceed twenty-five dollars annually. The permit process may not be affected by the content of a publication. The director shall require permittees to comply with appropriate indemnification, insurance, and other risk management provisions of the permit. Vending machines must be secured in a manner that prevents tipping and moving, deters theft, and leaves state property undamaged. Plexiglass, safety glass, or other shatter-resistant materials must be employed in windows or displays. All vending machines must be sufficiently enclosed to prevent the distributed product from inadvertently being removed or blown from the machine or weathered by the elements. Stolen or damaged vending machines do not result in liability to the department and must be repaired, restored, or replaced within thirty calendar days. All cashboxes and accesses to cashboxes must be metal and securely locked in place. All vending machines must be placed in a well-lighted area visible from the rest area roadway. All vending machines must be placed on a route allowing parallel access by motorized or standard wheelchairs, with at least sixty-six inches [1676.400 millimeters] of clear width. A vending machine may not have a component or function used by the public which requires more than five pounds [2.268 kilograms] of force to be applied. The height of controls, doors, or access points necessary for use by the public may not exceed sixty inches [1524 millimeters]. The director may determine the maximum number of vending machine placements at a given rest area. Priority must be given to vending machines placed pursuant to the Randolph Sheppard Act [Pub. L. 74-732; 49 Stat. 1559; 20 U.S.C. 107], as administered by the vocational rehabilitation division of the department of health and human services under section 50-06.1-13. When, after allowing for the placement of vending machines pursuant to the Randolph Sheppard Act [Pub. L. 74-732; 49 Stat. 1559; 20 U.S.C. 107], the director determines that the number of permit applications for a particular rest area would exceed the remaining available space or would prevent compliance with this section or other law, the director shall grant permits by means of a lottery, with permits allocated pro rata according to the number of applications for each type. The permittee is solely responsible to ensure that any trash, wrapping, boxes, or debris, generated when stocking or servicing vending machines is not left on or at the rest area. The permittee is solely responsible for all installation, maintenance, replacement, inspection, access area cleaning, and stocking of vending machines. Vandalism and graffiti on vending machines must be repaired or removed within fourteen days of written notice by the director. The permittee must inspect and stock vending machines as needed, but at least monthly, to provide adequate service to the public. Vending machines removed for repair or for other reasons must be restored or replaced by the permittee within thirty days. Vending machines in violation of this section or any other applicable law may be removed by the director fourteen days after notice of violation is provided and without liability to the director. Vending machines judged by the director to pose a risk to safety may be removed immediately without liability to the director and without prior notice to the permittee. The director shall retain any removed vending machines for thirty days to allow retrieval by the permittee, after compensation to the director for removal costs. The director may dispose of or sell machines not retrieved within thirty days of removal, but removal costs must be satisfied only to the extent of proceeds received by the director. The director has a cause of action to recover any deficiency, attorney’s fees, and litigation expenses. The director, upon the determination that a rest area must be closed for a period of greater than thirty days, may order the permittee, at the permittee’s expense, to remove all vending machines in a manner that does not damage state property, or remove all product and money and place upon the vending machine a prominent notice that all product and money have been removed. Should the director determine that removal of vending machines is necessary to conduct repairs, construction, surveys, or other duties of the department, the permittee, at the permittee’s expense, shall remove all vending machines in a manner that does not damage state property, upon fourteen days’ notice. The current address and telephone number where customer service or business is conducted by the permittee must be legibly and prominently posted upon the vending machine. The director shall cancel the permit should the permittee remove vending machines, except as provided in this section. The cost of any removal must be borne by the permittee. The permittee, at the permittee’s own expense, must restore the site the machine formerly occupied to the satisfaction of the director. For purposes of this section, “vending machine” means any device that allows access to a newspaper, magazine, beverage, concession, or other item for public consumption or use. For purposes of this section, “permittee” means any person or organization, including any corporation, partnership, firm, or any other legal entity capable of owning property and transacting business, which has applied for a permit under this chapter. For purposes of this section, “notice” consists of a written communication and must be deemed to have occurred within seventy-two hours of mailing, if mailed within North Dakota, or one hundred twenty hours of mailing, if mailed outside North Dakota. “Notice” to a vendor of the condition of a vending machine also occurs if a period of time greater than the required inspection interval for the vending machines has passed.

Source:

S.L. 1999, ch. 331, § 1; 2021, ch. 352, § 353, effective September 1, 2022.

CHAPTER 39-02 Department to Register Motor Vehicles

39-02-01. Registrar of motor vehicles — Appointment — Term — Removal — Oath — Bond. [Repealed]

Repealed by S.L. 1989, ch. 72, § 25.

39-02-02. Salary and expenses of registrar. [Repealed]

Repealed by S.L. 1989, ch. 72, § 25.

39-02-03. Powers and duties of director and department.

The director may adopt and enforce such administrative rules, designate such agencies, and establish such branch offices, including contracted branch offices, as may be necessary to carry out the motor vehicle and driver’s license laws applicable to the director’s office and department. The director shall provide suitable motor vehicle and driver’s license forms and equipment requisite for the operation of the director’s office and department, and shall prepay all transportation charges thereon. Branch office contracts entered under this section may extend five years and may be renewed in accordance with this section. At least one year before the end of each branch office contract term, the department shall consider entering contracts with new branch office vendors. Notwithstanding any other provision of law, the director may enter direct negotiations and contract with qualified vendors to provide branch office services. The director may provide for a maximum fee schedule for the various services provided by the branch offices, not to exceed ten dollars for each service provided. Any branch office may establish a different fee schedule if the schedule does not contain a fee that exceeds a maximum fee established by the director and is approved by the director. All branch office managers must be bonded. The department may lease or provide office space or other costs as necessary to independent motor vehicle branch managers. All rents collected under this section must be deposited in the state highway fund. The department and the officers thereof shall enforce the provisions of all laws pertaining to the director and the department.

Source:

S.L. 1927, ch. 179, § 3; R.C. 1943, § 39-0203; S.L. 1951, ch. 236, § 3; 1957 Supp., § 39-0203; S.L. 1967, ch. 294, § 1; 1975, ch. 323, § 1; 2005, ch. 323, § 1; 2011, ch. 41, § 24; 2013, ch. 43, § 13; 2015, ch. 12, § 17, effective July 1, 2015; 2021, ch. 281, § 1, effective August 1, 2021.

Effective Date.

The 2015 amendment of this section by section 17 of chapter 12, S.L. 2015 became effective July 1, 2015.

Note.

Section 21 of chapter 12, S.L. 2015 provides, “APPLICATION. Section 17 of this Act (which amended this section) applies to applicable contracts, regardless of whether entered before or after the effective date of this Act.”

39-02-03.1. Director to provide notice and opportunity for hearing prior to cancellation, revocation, suspension, or rescission of a motor vehicle registration or a certificate of title to a motor vehicle.

Whenever, under the laws pertaining to the cancellation, revocation, suspension, or rescission of a registration of a motor vehicle or a certificate of title to a motor vehicle, a determination has been made to cancel, revoke, suspend, or rescind either the registration or certificate of title, or both, the director shall provide the legal and registered owner with notice of such cancellation, revocation, suspension, or rescission and the opportunity for a hearing. Such notice must be sent by registered or certified mail, return receipt requested, not less than ten days prior to the effective date of the cancellation, revocation, suspension, or rescission.

Source:

S.L. 1975, ch. 324, § 1.

Notes to Decisions

Jurisdiction.

District court erred in finding the officer’s failure to forward an empty blood collection kit divested the director of jurisdiction to suspend defendant’s license, where officer found no blood had entered the vacutainer tube. Maher v. N.D. DOT, 539 N.W.2d 300, 1995 N.D. LEXIS 184 (N.D. 1995).

39-02-04. Office of registrar open for licenses and information — Time. [Repealed]

Repealed by S.L. 1989, ch. 72, § 25.

39-02-05. (See note for contingent expiration of amendment) Records of the department open to public inspection.

Except as provided by chapter 39-33, all registration and license records in the office of the department must be public records and must be open to inspection by the public during business hours. The director shall charge a uniform fee, not to exceed three dollars, for each item of information furnished to any person concerning a specific motor vehicle. However, such charges may not be assessed to a person requesting information concerning a motor vehicle of which that person is the owner, nor may such charges apply to law enforcement officials requesting motor vehicle information in their official capacity. All fees received under the provisions of this section must be credited to the highway tax distribution fund.

Source:

S.L. 1927, ch. 179, § 5; R.C. 1943, § 39-0205; S.L. 1959, ch. 289, § 2; 1991, ch. 397, § 1; 1997, ch. 349, § 11; 2007, ch. 316, § 2.

Note.

Section 11 of chapter 349, S.L. 1997, amended this section by substituting “Except as provided by chapter 39-33, all” for “All”, at the beginning of the section. The amendment by section 11 is subject to the contingent expiration date provided in section 12 of chapter 349, S.L. 1997.

Section 12 of chapter 349, S.L. 1997 provides:

EXPIRATION DATE. This Act becomes ineffective on the date the attorney general certifies to the legislative council that the Federal Driver’s Privacy Protection Act of 1994 [Pub. L. 103-322; 108 Stat. 2099; 18 USCS 2721] has been declared unconstitutional by the United States Supreme Court or is otherwise void.”

Cross-References.

Abstracts of motorists’ driving records, access to, see §§ 39-16-03, 39-16-03.1.

Access to public records, see § 44-04-18.

Collateral References.

Right to inspect motor vehicle records, 84 A.L.R.2d 1261.

39-02-06. Records of stolen or recovered motor vehicles to be furnished certain officials and departments. [Repealed]

Repealed by S.L. 1963, ch. 265, § 7.

39-02-07. Penalty for violation of chapter. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

CHAPTER 39-03 Highway Patrol

39-03-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Assistant superintendent” means the assistant highway patrol superintendent.
  2. “Patrolmen” means the members of the highway patrol including the superintendent and the assistant superintendent.
  3. “Superintendent” means the state highway patrol superintendent.

Source:

R.C. 1943, § 39-0301; S.L. 1951, ch. 237, § 1; 1957 Supp., § 39-0301.

39-03-02. State highway patrol superintendent appointed by governor — Duties.

The governor shall appoint a state highway patrol superintendent who shall enforce the provisions of the laws of this state relating to the protection and use of the highways in this state and the operation of motor and other vehicles upon such highways.

Source:

S.L. 1935, ch. 148, § 1; 1937 Sp., ch. 139, § 18, subs. a; 1941, ch. 175, § 4, subs. a; R.C. 1943, § 39-0302; S.L. 1951, ch. 237, § 2; 1957 Supp., § 39-0302; S.L. 1967, ch. 295, § 1.

39-03-03. Patrolmen — Appointment — Removal — Duties.

The superintendent, the assistant superintendent, and the patrolmen constitute the highway patrol. The highway patrol shall enforce the provisions of the laws of this state relating to the protection and use of highways and shall patrol the highways and cooperate with sheriffs and police in enforcing the laws regulating the operation of vehicles and the use of highways. All patrolmen and the assistant superintendent must be appointed by the superintendent. Each patrolman appointed is deemed a probationary employee for an initial period of six months, during which the patrolman must be placed under probationary training and service and is subject to an extension of an additional period of six months or dismissal at the will of the superintendent or the superintendent’s designee. At the end of the probationary period, a probationary employee must either be taken off probationary status or dismissed. A nonprobationary employee employed in a regular, classified position is subject to removal for cause by the superintendent or the superintendent’s designee, but the employee may appeal a dismissal under chapter 54-44.3 provided the removal of the assistant superintendent from the assistant superintendent position does not entitle that person to appeal the removal unless that person also is dismissed from the patrol.

Source:

S.L. 1935, ch. 148, § 2; 1937 Sp., ch. 139, § 18, subs. b; 1941, ch. 175, § 4, subs. b; R.C. 1943, § 39-0303; S.L. 1947, ch. 262, § 1; 1949, ch. 240, § 1; 1951, ch. 237, § 3; 1955, ch. 239, § 5; 1957 Supp., § 39-0303; S.L. 1965, ch. 267, § 1; 1967, ch. 295, § 2; 1971, ch. 352, § 1; 1997, ch. 461, § 1; 2019, ch. 305, § 1, effective August 1, 2019.

39-03-04. Qualifications of patrolmen — Veterans have preference.

No person may be appointed as a patrolman unless the person has all of the following qualifications:

  1. Has passed such physical examination and such other qualification test as may be required by the superintendent.
  2. Is of good moral character and temperate habits.
  3. Has been a citizen of the United States for not less than two years prior to the appointment.

Preference for appointment must be given at all times to honorably discharged veterans and citizens of the state of North Dakota, and all appointments must be made without regard to any political party affiliation of the applicant.

Source:

S.L. 1935, ch. 148, § 7; 1937 Sp., ch. 139, § 18, subs. e; 1941, ch. 175, § 4, subs. e; R.C. 1943, § 39-0304; S.L. 1947, ch. 262, § 2; 1955, ch. 239, § 6; 1957 Supp., § 39-0304; S.L. 1967, ch. 295, § 3; 1973, ch. 120, § 35; 1983, ch. 418, § 1; 1991, ch. 398, § 1.

Cross-References.

Veterans’ preference, see § 37-19.1-02.

39-03-05. Badge issued to patrolmen — Contents of badge.

The superintendent shall issue to each patrolman a badge of authority with the seal of this state in the center thereof. The term “North Dakota patrol” must encircle such seal and above the same must appear the designation of the position held by the person to whom such badge is issued. Each such badge must contain a unit number or symbol of rank. No badge may be issued to any person who is not a duly appointed and acting member of the highway patrol.

Source:

S.L. 1937 Sp., ch. 139, § 18, subs. g, subds. a, b; 1941, ch. 175, § 4, subs. g, subds. a, b; R.C. 1943, § 39-0305; S.L. 1951, ch. 237, § 4; 1957 Supp., § 39-0305; 2017, ch. 258, § 1, effective March 15, 2017.

39-03-06. Oath required of superintendent, assistant superintendent, and patrolmen.

The superintendent, assistant superintendent, and each patrolman, before entering upon the performance of the person’s duties, shall take and file the oath prescribed by law for state officers.

Source:

S.L. 1935, ch. 148, § 3; 1937 Sp., ch. 139, § 18, subs. c; 1941, ch. 175, § 4, subs. c; R.C. 1943, § 39-0306; S.L. 1951, ch. 237, § 5; 1957 Supp., § 39-0306; S.L. 1999, ch. 113, § 13.

Cross-References.

Oath, see N.D. Const., Art. XI, § 4; § 44-01-05.

39-03-07. Salary of superintendent — Limitations.

The salary of the superintendent must be within the amount appropriated for salaries by the legislative assembly. The salary of the assistant superintendent and each patrolman must be fixed by the superintendent, and must be paid in the same manner as other state employees are paid.

Source:

S.L. 1935, ch. 148, § 5; 1937 Sp., ch. 139, § 18, subs. d; 1941, ch. 175, § 4, subs. d; 1943, ch. 146, § 3; R.C. 1943, § 39-0307; S.L. 1945, ch. 250, § 1; 1947, ch. 262, § 3; 1957 Supp., § 39-0307; S.L. 1967, ch. 295, § 4; 1981, ch. 535, § 13.

39-03-08. Manner of paying salaries, wages, and expenses of highway patrol.

All salaries, wages, and other expenses of the highway patrol must be paid by the office of management and budget and state treasurer out of the patrol fund, upon vouchers required by law for the payment of all state expenses, duly approved by the superintendent, and audited and allowed by the office of the budget.

Source:

S.L. 1935, ch. 148, § 4; 1937 Sp., ch. 139, § 18, subs. d; 1941, ch. 175, § 4, subs. d; 1943, ch. 146, § 3; R.C. 1943, § 39-0308; S.L. 1951, ch. 237, § 6; 1957 Supp., § 39-0308; S.L. 1959, ch. 372, § 48.

39-03-08.1. Contracts — Bids. [Repealed]

Repealed by S.L. 1999, ch. 332, § 1.

39-03-08.2. Requests for bids — How advertised. [Repealed]

Repealed by S.L. 1999, ch. 332, § 1.

39-03-08.3. Bids — Requirement. [Repealed]

Repealed by S.L. 1999, ch. 332, § 1.

39-03-08.4. Checks of three lowest bidders retained. [Repealed]

Repealed by S.L. 1999, ch. 332, § 1.

39-03-08.5. Award of contracts — Bond. [Repealed]

Repealed by S.L. 1999, ch. 332, § 1.

39-03-09. Powers of highway patrol.

The superintendent and each member of the highway patrol shall have the power:

  1. Of a peace officer for the purpose of enforcing the provisions of this title relating to operators’ licenses, the provisions of title 24 relating to highways, and of any other law regulating the operation of vehicles or the use of the highways, and in addition the highway patrol shall enforce all laws relating to the use or presence of alcoholic beverages in motor vehicles.
  2. To make arrests upon view and without warrant for any violation committed in the person’s presence of any of the provisions of this title relating to operators’ licenses, or of title 24 relating to highways or to other laws regulating the operation of vehicles or the use of the highways.
  3. To direct traffic in conformance with law, or, in case of fire or emergency and to expedite traffic, or, to ensure safety by directing traffic as conditions may require notwithstanding the provisions of law.
  4. To facilitate compliance with the provisions of this title, to require the driver of a vehicle to stop and exhibit the driver’s operator’s license and the registration cards issued for the vehicle, if any are required, and to submit to an inspection and test of the equipment of such vehicle.
  5. For the purpose of locating stolen vehicles and to investigate the title and registration thereof, to inspect any vehicle of a type required to be registered under the provisions of this title, in any public garage or repair shop, or in any place where such vehicles are held for sale or wrecking.
  6. To serve all warrants relating to the enforcement of the laws regulating the operation of vehicles or the use of the highways.
  7. To investigate traffic accidents and secure testimony of witnesses or of persons involved.
  8. To investigate reported thefts of motor vehicles, trailers, or semitrailers.
  9. To take applications for operators’ licenses without making a charge therefor.
  10. To enforce all laws, rules, or regulations of the state of North Dakota pertaining to the closing hours of all businesses or establishments selling alcoholic beverages outside the limits of incorporated cities of this state.
  11. To exercise general police powers over all violations of law committed on state owned or leased property.
  12. To exercise general police powers over all violations of law committed in their presence upon any highway and within the highway right of way or when in pursuit of any actual or suspected law violator.
  13. To require a motor carrier owner, or a motor carrier’s agent, affected by rules adopted under chapter 39-21 to produce logs or other documents to determine compliance with rules adopted under chapter 39-21.
  14. To provide security and protection for the governor, the governor’s immediate family, and other officers next in order of succession to the office of governor to the extent and in a manner the governor and the superintendent deem adequate and appropriate.
  15. To provide security and protection for both houses of the legislative assembly while in session as in the opinion of the speaker of the house, the president of the senate, and the superintendent are deemed adequate and appropriate.
  16. Of a peace officer when responding to a request for emergency assistance requiring an immediate response regardless of whether the request is being made by another law enforcement agency or officer.
  17. To promote public trust and an understanding of law enforcement through education, community outreach, and job shadowing programs.
  18. To exercise general police powers over any violation of law committed on public or private property when requested by another law enforcement agency.

Source:

S.L. 1935, ch. 148, §§ 2, 6; 1937 Sp., ch. 139, § 18, subs. f, subds. 1 to 8, 10; 1941, ch. 175, § 4, subs. f, subds. 1 to 8, 10; R.C. 1943, § 39-0309; S.L. 1951, ch. 237, § 7; 1953, ch. 232, § 1; 1957 Supp., § 39-0309; S.L. 1959, ch. 236, § 2; 1959, ch. 289, § 14; 1965, ch. 268, § 1; 1967, ch. 295, § 5; 1967, ch. 296, § 1; 1987, ch. 443, § 1; 1991, ch. 399, §§ 1, 2; 1999, ch. 333, § 1; 2007, ch. 317, § 1; 2017, ch. 258, § 2, effective March 15, 2017; 2019, ch. 306, §§ 1, 2, effective August 1, 2019.

Note.

Section 39-03-09 was amended 2 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 2 of Chapter 306, Session Laws 2019, House Bill 1223; and Section 1 of Chapter 306, Session Laws 2019, House Bill 1223.

Cross-References.

Alcoholic beverages, see Title 5.

Arrests, see ch. 29-06.

Chemical tests for intoxication, implied consent, see ch. 39-20.

Driving under influence, see § 39-08-01.

Open container law, see § 39-08-18.

39-03-09.1. Job shadowing.

For purposes of education and community outreach, and to promote public trust, the superintendent may permit a nonmember of the highway patrol to participate in job shadowing activities, including:

  1. Participating in a ride-along program with a member of the highway patrol while on duty;
  2. Operating a highway patrol motor vehicle on a closed course under the supervision of a member of the highway patrol; and
  3. Discharging a firearm owned and used by the highway patrol while at a training facility and under the supervision of a member of the highway patrol.

Source:

S.L. 2019, ch. 11, § 3, effective July 1, 2019.

39-03-10. Patrolmen to inspect motor vehicles — Report violations. [Repealed]

Repealed by S.L. 1967, ch. 296, § 2.

39-03-11. Penalty for impersonating patrolman.

Any person is guilty of a class A misdemeanor if:

  1. Without authority, the person wears the badge of a member of the highway patrol, or a badge of similar design which would tend to deceive anyone;
  2. The person impersonates a member of the highway patrol or other officer or employee of the highway patrol with intent to deceive anyone; or
  3. Without authority, the person wears a uniform likely to be confused with the official uniform of the highway patrol.

Source:

S.L. 1937 Sp., ch. 139, § 18, subs. g, subds. c, d; 1941, ch. 175, § 4, subs. g, subds. c, d; R.C. 1943, § 39-0311; S.L. 1975, ch. 106, § 419.

39-03-12. Penalty in violation of chapter.

Any person who violates any of the provisions of this chapter, for which another penalty is not specifically provided, is guilty of a class B misdemeanor.

Source:

S.L. 1937 Sp., ch. 139, § 21; R.C. 1943, § 39-0312; S.L. 1975, ch. 106, § 420.

Cross-References.

Classification of offenses, penalties, see § 12.1-32-01.

39-03-13. Additional powers of superintendent.

In addition to the superintendent’s powers as a member of the highway patrol, the superintendent of the patrol has the following powers as administrative head of the patrol:

  1. The superintendent may organize the patrol into divisions, bureaus, and districts as the superintendent deems necessary.
  2. The superintendent may designate ranks, fix salaries with appropriate allowances for those ranks, and establish promotional procedures.
  3. The superintendent or the superintendent’s designee may take reasonable disciplinary action against members of the patrol for inefficiency, misconduct, insubordination, or violation of an established rule, whenever the superintendent or the superintendent’s designee deems the actions necessary, provided that:
    1. When demotion in rank is ordered summarily against a member of the patrol as a disciplinary measure, to be limited to a one-grade reduction in rank, the order is appealable under chapter 54-44.3.
    2. When a reduction in pay of a member of the patrol is ordered summarily as a disciplinary measure, it must be limited to one year’s duration and the order is appealable under chapter 54-44.3.
    3. Suspension of pay for a member of the patrol for a period not exceeding seven days may be ordered summarily as a disciplinary measure, but an order for suspension of pay for a longer period is appealable under chapter 54-44.3.
  4. A suspension of pay for a member of the patrol may be summarily ordered not more than twice in one year as separate disciplinary measures, except that further suspensions are appealable under chapter 54-44.3.

Source:

S.L. 1955, ch. 239, § 1; R.C. 1943, 1957 Supp., § 39-0313; S.L. 1967, ch. 295, § 6; 1971, ch. 352, § 2; 1997, ch. 461, § 2; 2019, ch. 305, § 2, effective August 1, 2019.

39-03-13.1. Law enforcement training center — Training conducted.

The superintendent of the highway patrol is responsible for the operation, maintenance, and administration of the law enforcement training center. The superintendent shall appoint a director of the training center who is responsible for coordinating basic and advanced peace officer training and such other duties as may be prescribed by the superintendent. All peace officer training which is conducted at the law enforcement training center shall meet the certification criteria established by the peace officer standards and training board and must be in accordance with the basic and advanced peace officer curriculum established by the peace officer standards and training board.

Source:

S.L. 1981, ch. 154, § 11.

39-03-13.2. Silver alert notice system.

The superintendent, in cooperation with the bureau of criminal investigation and the division of state radio of the department of emergency services, shall establish a silver alert notice system to activate an urgent bulletin using the emergency alert system to air a description of a disabled adult or vulnerable elderly adult as defined in section 12.1-31-07 or a minor who has a developmental disability as defined in section 25-01.2-01, who has been reported to law enforcement as missing and to aid in the location of that individual.

Source:

S.L. 2017, ch. 259, § 1, effective August 1, 2017.

39-03-14. Disciplinary board of review. [Repealed]

Repealed by S.L. 1971, ch. 352, § 3.

39-03-15. Radar evidence in speed violations.

The speed of any motor vehicle may be checked by the use of radio microwaves or other electrical device. The results of such checks shall be accepted as prima facie evidence of the speed of such motor vehicle in any court or legal proceedings where the speed of the motor vehicle is at issue. The driver of any such motor vehicle may be arrested without a warrant under this section, provided the arresting officer is in uniform or displays the officer’s badge of authority; provided that such officer has observed the record of the speed of such motor vehicle by the radio microwaves or other electrical device, or has received a radio message from the officer who observed the speed of the motor vehicle recorded by the radio microwaves or other electrical device. Nothing herein shall affect the powers of cities or towns to adopt and use such device to measure speed.

Source:

S.L. 1955, ch. 239, § 4; R.C. 1943, 1957 Supp., § 39-0315.

Notes to Decisions

Reasonable Suspicion.

When a patrol officer testified that he clocked a driver traveling at 36 miles per hour in a 25-mile-per-hour zone, the officer had a reasonable, articulable suspicion to stop the driver. It was not necessary to provide evidence that the radar was working properly or that the officer was certified to operate the radar device. Although N.D.C.C. § 39-03-15 requires the results of a radar speed check be accepted as prima facie evidence of the speed of the motor vehicle, the officer’s testimony was not offered for purposes of establishing a conviction for a speeding violation but was instead offered to establish that a reasonable person in the officer’s position would be justified by some objective manifestation to suspect potential unlawful activity. Sturn v. Dir., N.D. DOT, 2009 ND 39, 763 N.W.2d 515, 2009 N.D. LEXIS 53 (N.D. 2009).

Collateral References.

Radar or other mechanical or electronic devices, proving violation of speed regulations by, 47 A.L.R.3d 822.

39-03-16. Safety division created — Director.

There is hereby created a safety division within the state highway patrol for the purpose of reducing the danger of travel on the highways, roads, and streets of this state, the number of motor vehicle accidents with resultant loss of lives, personal injuries, and property damage, and encouraging better law enforcement, more uniform penalties, safe driving practices, and public adherence to traffic safety laws, through public education, information, and support.

The director of the safety division must be appointed by the superintendent in accordance with sections 39-03-03 and 39-03-04, and possessing such qualifications by education or experience in the field of highway safety as the superintendent shall determine. The director shall receive such compensation as may be determined by the superintendent.

Source:

S.L. 1963, ch. 267, § 1.

39-03-17. Powers and duties of director of the safety division.

The director of the safety division, under the supervision of the highway patrol superintendent, shall direct and carry on a public education and information program and assist and cooperate with all governmental or private agencies, organizations, or groups in order to encourage better and safer driving practices, better law enforcement, and more uniform penalties, for the purpose of reducing the number of motor vehicle accidents.

The director shall coordinate and strengthen the highway and traffic safety activities of the state of North Dakota and its political subdivisions. The director shall specifically promote the coordination of the functions of driver licensing and control, financial responsibility, traffic law enforcement, and other highway and traffic safety activities of the state highway patrol and the department of transportation, and shall generally work and cooperate with the officials in charge of these departments and all public officials in all matters relating to motor vehicle safety.

All supplies and equipment of the public safety division of the department of transportation are hereby transferred to the public safety division of the highway patrol created by section 39-03-16.

Source:

S.L. 1963, ch. 267, § 2.

39-03-18. Highway patrol — Assets forfeiture fund — Purpose — Continuing appropriation.

There is created a fund to be known as the highway patrol assets forfeiture fund. The fund consists of funds obtained from moneys, assets, and proceeds seized and forfeited pursuant to section 19-03.1-36, amounts received through court proceedings as restitution, and amounts remaining from the forfeiture of property after the payment of expenses for forfeiture and sale authorized by law. The total amount of deposits into the fund may not exceed three hundred thousand dollars within a biennium and any moneys in excess of that amount must be deposited in the general fund. The funds are appropriated as a continuing appropriation to the highway patrol for the following purposes:

  1. For paying expenses necessary to inventory, safeguard, maintain, advertise, or sell property seized, detained, or forfeited, pursuant to section 19-03.1-36, or of any other necessary expenses incident to the seizure, detention, or forfeiture of the property.
  2. For paying overtime compensation incurred as a result of investigations or violations of any state criminal law or law relating to the control of drug abuse.
  3. For purchasing equipment related to criminal interdiction.
  4. For paying matching funds required as a condition for receipt of funds from a federal government program awarding monetary grants or assistance for the investigation or apprehension of persons violating the provisions of chapter 19-03.1.

The superintendent of the highway patrol, with the concurrence of the director of the office of management and budget, shall establish the necessary accounting procedures for the use of the fund and shall personally approve, in writing, all requests for the use of the fund.

Source:

S.L. 2007, ch. 318, § 1; 2009, ch. 319, § 1.

39-03-19. Capitol building access card fund — Continuing appropriation.

There is created in the state treasury a capitol building access card fund. The fund consists of any fees received by the superintendent for the issuance of capitol building access cards. The superintendent shall establish policies regarding the issuance of capitol building access cards and may charge a fee of ten dollars for each access card issued to an individual who is not an employee of the state of North Dakota. All moneys in the fund are appropriated to the highway patrol on a continuing basis for costs associated with the issuance of capitol building access cards and capitol complex security needs.

Source:

S.L. 2017, ch. 36, § 8, effective July 1, 2017.

CHAPTER 39-03.1 Highway Patrolmen’s Retirement System

39-03.1-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Accumulated deductions” means the total of the amounts deducted from the salary of a contributor and paid into the fund, and standing to the contributor’s credit in the fund, and interest credited on those amounts at a rate established by the board.
  2. “Board” means the North Dakota public employees retirement board.
  3. “Contributor” means any person who is a member of the North Dakota highway patrol, is subject to salary deductions to support the fund, and is employed on or after July 1, 1981.
  4. “Fund” means the North Dakota highway patrolmen’s retirement fund.
  5. “Patrol” means the North Dakota highway patrol.
  6. “Salary” means the actual dollar compensation, excluding any bonus, overtime, or expense allowance, paid to or for a contributor for the contributor’s services.
  7. “Surviving spouse” means that person lawfully married to the contributor at the time of the contributor’s death.

Source:

S.L. 1949, ch. 239, § 1; 1951, ch. 238, § 1; 1955, ch. 240, §§ 1, 2; R.C. 1943, 1957 Supp., § 39-03A01; S.L. 1965, ch. 269, §§ 1, 2; 1971, ch. 353, § 10; 1975, ch. 325, § 1; 1981, ch. 380, § 1; 1983, ch. 419, § 2; 1987, ch. 444, § 1; 2015, ch. 259, § 1, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 259, S.L. 2015 became effective August 1, 2015.

Note.

Prior to 1979, this chapter was numbered chapter 39-03A.

39-03.1-02. North Dakota highway patrolmen’s retirement system.

A retirement system is hereby established for the members of the North Dakota highway patrol.

Source:

S.L. 1949, ch. 239, § 2; 1951, ch. 238, § 1; R.C. 1943, 1957 Supp., § 39-03A02.

39-03.1-03. North Dakota highway patrolmen’s retirement board. [Repealed]

Repealed by S.L. 1983, ch. 419, § 4.

39-03.1-04. Administrative expenses.

The expense of the administration of this chapter, exclusive of the payment of retirement allowances and other benefits, must be paid by the state of North Dakota, by appropriation out of the highway patrol fund, made on the basis of budgets submitted by the board.

Source:

S.L. 1949, ch. 239, § 4; 1951, ch. 238, § 1; R.C. 1943, 1957 Supp., § 39-03A04.

39-03.1-05. Deposit of contributions — Appropriation.

All moneys of the fund, including employers’ contributions, contributors’ contributions, grants, donations, legacies, and devises for the benefit of the fund, must be deposited in the public employees retirement fund account with the Bank of North Dakota. All of these moneys, not otherwise appropriated, are appropriated for the purpose of making investments for the fund and to make payments to beneficiaries under the program.

Source:

S.L. 1949, ch. 239, § 5; 1951, ch. 238, § 1; R.C. 1943, 1957 Supp., § 39-03A05; S.L. 1987, ch. 444, § 2.

39-03.1-06. Rules and regulations — Actuarial data.

The board shall, from time to time, establish such rules and regulations for the administration of this chapter as may be deemed necessary. It shall cause to be made periodic actuarial investigations into the mortality and service experience of the contributors to and the beneficiaries of the fund.

Source:

S.L. 1949, ch. 239, § 6; 1951, ch. 238, § 1; R.C. 1943, 1957 Supp., § 39-03A06.

39-03.1-07. Membership.

Except as otherwise provided, each member of the patrol, including the superintendent and assistant superintendent, shall contribute to the fund, and is eligible to nominate and vote for members of the board. Personnel of the truck regulatory division of the state highway department transferred to the highway patrol after July 1, 1983, are not required to contribute to the fund. They are members of the public employees retirement system and social security system.

Source:

S.L. 1949, ch. 239, § 7; 1951, ch. 238, § 1; R.C. 1943, 1957 Supp., § 39-03A07; S.L. 1983, ch. 418, § 2; 1987, ch. 444, § 3.

39-03.1-08. Service allowance. [Repealed]

Repealed by S.L. 1987, ch. 444, § 8.

39-03.1-08.1. Purchase of legislative service credit.

A contributor may, prior to retirement, purchase service credit for the time during each legislative session spent serving as a member of the legislative assembly while a member of the fund. The contributor shall pay for the service credit an amount equal to the required member contributions and the state contributions for that period of time plus interest as established by the board. Service credit for legislative sessions prior to July 1, 1985, must be purchased before January 1, 1986. Service credit for each later legislative session must be purchased within one year after the adjournment of that legislative session.

Source:

S.L. 1985, ch. 587, § 3; R.M. disapproved December 5, 1989, S.L. 1991, ch. 740.

Note.

The 1989 repeal of this section by S.L. 1989, ch. 223, section 8 was disapproved by R.M. December 5, 1989.

The section is set out above as it read prior to such repeal.

39-03.1-08.2. Purchase of additional service credit.

  1. The fund may accept rollovers from other eligible plans under rules adopted by the board for the purchase of additional service credit, but only to the extent the transfer is a rollover contribution that meets the requirement of section 408 of the Internal Revenue Code [26 U.S.C. 408].
  2. The board may accept trustee-to-trustee transfers as permitted by Internal Revenue Code section 403(b)(13) and section 457(e)(17) from an Internal Revenue Code section 403(b) annuity or Internal Revenue Code section 457 deferred compensation plan for the purchase of permissive service credit, as defined in Internal Revenue Code section 415(n)(3)(A), or as repayment of a cashout from a governmental plan under Internal Revenue Code section 415(k)(3).
  3. A contributor may elect to purchase credit for years of service and prior service for which the contributor is not presently receiving credit. A contributor is entitled to purchase additional credit under this section for the following service or prior service, except this service is not eligible for credit if the years claimed also qualify for retirement benefits from another retirement system:
    1. Except as provided in subsection 3 of section 39-03.1-10.1, up to four years of credit for active employment in the armed forces of the United States.
    2. Employment as a permanent employee by a public employer either within or outside the state.
    3. Employment as a permanent employee by the federal government.
  4. A contributor may elect to purchase credit for the following absences for which the participating contributor is not receiving service credit:
    1. Employer-approved leave of absence; and
    2. Months away from work while participating as a seasonal employee.
  5. The contributor may purchase credit under this section by paying to the board an amount equal to the actuarial cost to the fund of providing the credit. The board shall adopt rules governing the purchase of additional credit under this section.
  6. The board may establish individual retirement accounts and individual retirement annuities as permitted under section 408(q) of the Internal Revenue Code to allow employees to make voluntary employee contributions. The board may adopt appropriate rules as may be necessary to implement and administer the accounts and annuities under this section.
  7. In addition to service credit identified in this section, a vested contributor may purchase up to five years of service credit.
  8. Pursuant to rules adopted by the board, the board may allow a contributor to purchase service credit with either pretax or aftertax moneys, at the board’s discretion. If a contributor elects to purchase service credit using pretax moneys, the requirements and restrictions in subsection 2 of section 39-03.1-09 apply to the purchase arrangement.

Source:

S.L. 2001, ch. 330, §§ 1, 4; 2003, ch. 308, § 1; 2007, ch. 482, § 1; 2009, ch. 514, § 2; 2019, ch. 463, § 1, effective August 1, 2019.

Note.

Pursuant to Section 5 of chapter 330, S.L. 2001, subsection 8 of this section became effective on December 22, 2003. Section 5 of chapter 330, S.L. 2001, provides:

EFFECTIVE DATE. Section 4 of this Act becomes effective on the date the board of trustees of the public employees retirement system receives a letter ruling from the internal revenue service that section 4 of this Act does not jeopardize the qualified status of the highway patrolmen’s retirement system. The board shall notify the legislative council of the effective date of section 4 of this Act.”

39-03.1-09. Payments by contributors — Employer payment of employee contribution.

  1. Every member, except as provided in section 39-03.1-07, shall contribute into the fund ten and thirty-hundredths percent of the member’s monthly salary, which sum must be deducted from the member’s salary and credited to the member’s account in the fund. Member contributions increase by one percent of the member’s monthly salary beginning with the monthly reporting period of January 2012; with an additional increase of one percent, beginning with the monthly reporting period of January 2013; with an additional increase of one percent, beginning with the monthly reporting period of January 2014; with an additional increase of one - half of one percent, beginning with the monthly reporting period of January 2022; with an additional increase of one - half of one percent, beginning with the monthly reporting period of January 2023; with an additional increase of one - half of one percent, beginning with the monthly reporting period of January 2024; and with an additional increase of one - half of one percent, beginning with the monthly reporting period of January 2025.
  2. The state of North Dakota, at its option, may pay the member contributions required by subsection 1 for all compensation earned after June 30, 1983, and may pay the member contributions required to purchase service credit on a pretax basis pursuant to subsection 8 of section 39-03.1-08.2. The amount paid must be paid by the state in lieu of contributions by the member. A member may not receive the contributed amounts directly once the employer has elected to pay the member contributions. If the state decides not to pay the contributions, the amount that would have been paid will continue to be deducted from compensation. If contributions are paid by the state, they must be treated as employer contributions in determining tax treatment under this code and the federal Internal Revenue Code. If contributions are paid by the state, they must not be included as gross income of the member in determining tax treatment under this code and the Internal Revenue Code until they are distributed or made available. The state shall pay these member contributions from the same source of funds used in paying compensation to the members. The state shall pay these contributions by effecting an equal cash reduction in the gross salary of the employee or by an offset against future salary increases or by a combination of a reduction in gross salary and offset against future salary increases. If member contributions are paid by the state, they must be treated for the purposes of this chapter in the same manner and to the same extent as member contributions made prior to the date the contributions were assumed by the state. The option given employers by this subsection must be exercised in accordance with rules adopted by the board.
  3. For compensation earned after August 1, 2009, all employee contributions required under subsection 1, and not otherwise paid under subsection 2, must be paid by the state in lieu of contributions by the member. All contributions paid by the state under this subsection must be treated as employer contributions in determining tax treatment under this code and the federal Internal Revenue Code. Contributions paid by the state under this subsection may not be included as gross income of the member in determining tax treatment under this code and the Internal Revenue Code until the contributions are distributed or made available. Contributions paid by the state in accordance with this subsection must be treated for the purposes of this chapter in the same manner and to the same extent as member contributions made before the date the contributions were assumed by the state. The state shall pay these member contributions from the same source of funds used in paying compensation to the members. The state shall pay these contributions by effecting an equal cash reduction in the gross salary of the employee. The state shall continue making payments under this section unless otherwise specifically provided for under the agency’s biennial appropriation or by law.

Source:

S.L. 1949, ch. 239, § 9; 1951, ch. 238, § 1; R.C. 1943, 1957 Supp., § 39-03A09; S.L. 1965, ch. 269, § 3; 1971, ch. 353, § 2; 1975, ch. 325, § 2; 1977, ch. 331, § 1; 1979, ch. 407, § 1; 1981, ch. 380, § 2; 1983, ch. 217, § 2; 1983, ch. 418, § 3; 1985, ch. 416, § 1; 1987, ch. 444, § 4; 2003, ch. 308, § 2; 2009, ch. 514, § 3; 2011, ch. 432, § 1; 2013, ch. 431, § 1; 2021, ch. 282, § 1, effective August 1, 2021.

39-03.1-10. Contributions by the state.

The state shall contribute to the fund a sum equal to sixteen and seventy-hundredths percent of the monthly salary or wage of a participating member. State contributions increase by one percent of the monthly salary or wage of a participating member beginning with the monthly reporting period of January 2012; with an additional increase of one percent, beginning with the reporting period of January 2013; with an additional increase of one percent, beginning with the monthly reporting period of January 2014; with an additional increase of one-half of one percent, beginning with the monthly reporting period of January 2022; with an additional increase of one-half of one percent, beginning with the monthly reporting period of January 2023; with an additional increase of one-half of one percent, beginning with the monthly reporting period of January 2024; and with an additional increase of one-half of one percent, beginning with the monthly reporting period of January 2025. If the member's contribution is paid by the state under subsection 2 of section 39-03.1-09, the state shall contribute, in addition, an amount equal to the required member's contribution. The state shall pay the associated employer contribution for those members who elect to exercise their rights under section 39-03.1-10.3.

Source:

S.L. 1949, ch. 239, § 10; 1951, ch. 238, § 1; R.C. 1943, 1957 Supp., § 39-03A10; S.L. 1965, ch. 269, § 4; 1971, ch. 353, § 3; 1981, ch. 380, § 3; 1983, ch. 217, § 3; 1985, ch. 416, § 2; 1989, ch. 445, § 1; 1991, ch. 630, § 1; 2011, ch. 432, § 2; 2013, ch. 431, § 2; 2021, ch. 282, § 2, effective August 1, 2021; 2021, ch. 439, § 1, effective August 1, 2021.

Note.

Section 39-03.1-10 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 2 of Chapter 352, Session Laws 2021, Senate Bill 1247; and Section 1 of Chapter 439, Session Laws 2021, Senate Bill 2044.

39-03.1-10.1. Refund and repurchase of contributions.

Except as provided in section 39-03.1-10.3, a contributor whose employment has been terminated for at least thirty days is entitled to a refund of or to repurchase contributions as follows:

    1. If the contributor has less than ten years of service at termination of employment, the refund is payable either on application of the contributor or is automatically payable if within thirty days after termination the contributor has not provided a written statement to the board waiving the refund and requesting the contributor’s account remain in the fund and the contributor has an account balance of less than one thousand dollars.
    2. If the contributor has at least ten years of service at the date of termination, the contributor may apply for a refund of accumulated deductions instead of retirement benefits. By receiving the refund of accumulated deductions under this subdivision, the contributor forfeits all months of service to the date of refund and cannot use those months for any future benefit calculations.
  1. A contributor who was paid a refund under subdivision a of subsection 1 may, upon re-employment, elect to repurchase the forfeited past service for the retirement program and the retiree health benefits program in accordance with the rules adopted by the board.

Source:

S.L. 1987, ch. 444, § 5; 1991, ch. 630, § 2; 1995, ch. 365, § 1; 1997, ch. 464, § 1; 1999, ch. 334, § 1; S.L. 2005, ch. 531, § 1; 2009, ch. 514, § 4.

39-03.1-10.2. Employer service purchases.

An employer may purchase additional service credit on behalf of a contributor under the following conditions:

  1. The contributor may not be given the option to choose between an employer service purchase and an equivalent amount paid in cash.
  2. The contributor must meet one of the following conditions at the time the purchase is made:
    1. The contributor’s age plus service credit must be equal to or greater than seventy; or
    2. The contributor’s age must be at least fifty and the contributor must have at least ten years of service credit.
  3. The board must determine the purchase price on an actuarially equivalent basis.
  4. The purchase must be completed before the contributor’s retirement.
  5. The employer may purchase a maximum of five years of service credit on behalf of the contributor.
  6. The employer must pay the purchase price for the service credit purchased under this section in a lump sum.

Source:

S.L. 2003, ch. 308, § 3.

39-03.1-10.3. Military service under the Uniformed Services Employment and Reemployment Rights Act — Member retirement credit.

A member re-employed under the Uniformed Services Employment and Re-employment Rights Act of 1994, as amended [Pub. L. 103-353Pub. L. 103-353; 108 Stat. 3150; 38 U.S.C. 4301-4333], is entitled to receive retirement credit for the period of qualified military service. The required contribution for the credit, including payment for retiree health benefits, must be made in the same manner and by the same party as would have been made had the employee been continuously employed. If the salary the member would have received during the period of service is not reasonably certain, the member’s average rate of compensation during the twelve-month period immediately preceding the member’s period of service or, if shorter, the period of employment immediately preceding that period, times the number of months of credit being purchased must be used. Employees must be allowed up to three times the period of military service or five years, whichever is less, to make any required payments. This provision applies to all qualifying periods of military service since October 1, 1994. Effective for years after December 31, 2008, compensation for purposes of Internal Revenue Code section 415 [26 U.S.C. 415], as amended, includes military differential wage payments, as defined in Internal Revenue Code section 3401(h) [26 U.S.C. 3401(h)], as amended. Any payments made by the member to receive qualifying credit inconsistent with this provision must be refunded. Employees shall make application to the employer for credit and provide a DD Form 214 to verify service. After December 31, 2006, if a participating member dies while performing qualified military service, as defined in section 414(u)(5) of the Internal Revenue Code [26 U.S.C. 414(u)(5)], as amended, the deceased member’s beneficiaries are entitled to any death benefits, other than credit for years of service for purposes of benefits, which would have been provided under the plan if the participating member had resumed employment and then terminated employment on account of death. The period of that member’s qualified military service is treated as vesting service under the plan.

Source:

S.L. 2005, ch. 531, § 2; 2015, ch. 259, § 2, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 2 of chapter 259, S.L. 2015 became effective August 1, 2015.

Note.

Section 16 of chapter 259, S.L. 2015 provides, “RETROACTIVE APPLICATION . Sections 2, (which amended this section) 8, and 14 are retroactive in application.”

39-03.1-10.4. Reduction in member and employer contributions.

The required increase in the amount of member and employer contributions under sections 39-03.1-09 and 39-03.1-10 must be reduced to the rate in effect on July 1, 2013, effective on the July first that follows the first valuation of the highway patrolmen’s retirement plan showing a ratio of the actuarial value of assets to the actuarial accrued liability of the highway patrolmen’s retirement plan that is equal to or greater than one hundred percent.

Source:

S.L. 2013, ch. 431, § 3.

39-03.1-11. Retirement benefit.

Each contributor whose employment with the highway patrol has been terminated may apply to the board for retirement benefits according to this section and rules adopted by the board consistent with this chapter. The following procedures apply:

  1. A contributor is entitled to credit for permanent employment or its equivalent from the date eligibility is attained until normal or postponed retirement date, as described in subsection 3.
  2. Retirement benefits are based on the contributor’s final average salary. Final average salary is the average of the highest salary received by the contributor for any thirty-six months employed during the last one hundred twenty months of employment. For contributors who terminate employment on or after August 1, 2010, final average salary is the average of the highest salary received by the contributor for any thirty-six months employed during the last one hundred eighty months of employment. For contributors who terminate employment between July 31, 2005, and August 1, 2010, final average salary is the average of the highest salary received by the member for any thirty-six months employed during the period for which the board has appropriate and accurate salary records on its electronic database, but that period may not be more than the last one hundred eighty months of employment. For members who terminate employment after December 31, 2019, final average salary is the higher of the final average salary calculated on December 31, 2019, or the average salary earned in the three highest periods of twelve consecutive months employed during the last one hundred eighty months of employment. Months without earnings are excluded for the purpose of computing an average. If the contributor has worked for less than thirty-six months at the postponed retirement date, the final average salary is the average salary for all months of employment.
  3. Retirement dates are as follows:
    1. Early retirement date is the first day of the month next following the month in which the contributor attains the age of fifty years and has completed at least ten years of eligible employment.
    2. Normal retirement date is:
      1. The first day of the month next following the month in which the contributor attains the age of fifty-five years and has completed at least ten years of eligible employment; or
      2. When the contributor has a combined total of years of service credit and years of age equal to eighty and has not received a retirement benefit under this chapter.
    3. Postponed retirement date is the first day of the month next following the month in which the contributor attains the age of sixty years.
    4. Disability retirement date is the first day of the month after a contributor becomes permanently and totally disabled, according to medical evidence called for under the rules of the board, and has completed at least one hundred eighty days of employment.
  4. The board shall calculate retirement benefits as follows:
    1. Normal retirement benefits for all contributors reaching the normal retirement date are payable monthly, and are:
      1. The first twenty-five years of credited service multiplied by three and sixty hundredths percent of final average salary.
      2. All years in excess of twenty-five years of credited service multiplied by one and three-fourths percent of final average salary.
      3. All contributors who retired before August 1, 2001, or their beneficiaries, are entitled to receive benefits equal to three and sixty hundredths percent of final average salary multiplied by the first twenty-five years of credited service, plus one and three-fourths percent of final average salary multiplied by credited service in excess of twenty-five years, with the increased benefits payable beginning August 1, 2001.
    2. Early retirement benefits are normal retirement benefits accrued to the date of termination of employment, but actuarially reduced to account for benefit payments beginning before the normal retirement date.
    3. Postponed retirement benefits, for all contributors reaching the postponed retirement date, are calculated in the same manner as normal retirement benefits.
    4. Disability retirement benefits are payable monthly and are:
      1. Seventy percent of the contributor’s final average salary, reduced by any workforce safety and insurance benefits paid. The minimum monthly disability retirement benefit under this subsection is one hundred dollars.
      2. An individual or that person’s beneficiary who, on July 31, 2001, is receiving a disability retirement benefit is entitled to receive an increase in benefits equal to six percent of the individual’s present benefits, with the increase payable beginning August 1, 2001.
  5. On termination of employment after completing ten years of eligible employment but before the normal retirement date, a contributor who does not elect to receive early retirement benefits is eligible to receive deferred vested retirement benefits. The deferred benefits are payable beginning on the contributor’s normal retirement date in one of the forms provided in this section. Contributors who have delayed or inadvertently failed to apply for retirement benefits to commence on their normal retirement date may choose to receive either a lump sum payment equal to the amount of missed payments, or an actuarial increase to the form of benefit the member has selected, which increase must reflect the missed payments. The final average salary used for calculating deferred vested retirement benefits must be increased annually, from the later of the date of termination of employment or July 1, 1991, until the date the contributor begins to receive retirement benefits from the fund, at a rate as determined by the board not to exceed a rate that would be approximately equal to annual salary increases provided state employees pursuant to action by the legislative assembly.
  6. If before retiring a contributor dies after completing ten years of eligible employment, the board shall pay the contributor’s accumulated deductions to the contributor’s designated beneficiary as provided in this subsection. If the contributor has designated an alternate beneficiary with the surviving spouse’s written consent, the board shall pay the contributor’s account balance to the named beneficiary. If the contributor has named more than one primary beneficiary, the board shall pay the contributor’s account balance to the named primary beneficiaries in the percentages designated by the contributor or, if the contributor has not designated a percentage for the beneficiaries, in equal percentages. If one or more of the primary beneficiaries has predeceased the contributor, the board shall pay the predeceased beneficiary’s share to the remaining primary beneficiaries. If there are no remaining primary beneficiaries, the board shall pay the contributor’s account balance to the contingent beneficiaries in the same manner. If there are no remaining designated beneficiaries, the board shall pay the contributor’s account balance to the contributor’s estate. If the contributor has not designated an alternate beneficiary under this section or the surviving spouse is the beneficiary, the surviving spouse of the contributor may select one of the following optional forms of payment:
    1. A lump sum payment of the contributor’s accumulated deductions as of the date of death.
    2. Payment of a monthly retirement benefit equal to fifty percent of the deceased contributor’s accrued normal retirement benefits until the spouse dies.
  7. If a contributor not eligible for the benefits of subsection 6 terminates employment for any reason before retirement, the contributor or the contributor’s designated beneficiary is entitled to the contributor’s accumulated deductions at termination.
  8. The surviving spouse of a member receiving retirement benefits must be the member’s primary beneficiary unless there is no surviving spouse or the surviving spouse designates an alternate beneficiary in writing. If a contributor receiving retirement benefits, or a contributor’s surviving spouse receiving retirement benefits, dies before the total amount of benefits paid to them equals the amount of the contributor’s accumulated deductions at retirement, the difference must be paid to the named beneficiary of the recipient or, if there is no named beneficiary, to the recipient’s estate.
  9. The board shall adopt rules providing for the receipt of retirement benefits in the following optional forms:
    1. An actuarially equivalent joint and survivor one hundred percent option.
    2. An actuarially equivalent life with ten-year or twenty-year certain options.
    3. An actuarially equivalent partial lump sum distribution option with a twelve-month maximum lump sum distribution.
    4. An actuarially equivalent graduated benefit option with either a one percent or two percent increase to be applied the first day of January of each year.

Unless a contributor requests that the contributor receive benefits according to one of these options at the time of applying for retirement, all retirement benefits must be in the form of a lifetime monthly pension, with a fifty percent option to the surviving spouse.

Source:

S.L. 1949, ch. 239, § 11; 1951, ch. 238, § 1; R.C. 1943, 1957 Supp., § 39-03A11; S.L. 1975, ch. 325, § 3; 1987, ch. 444, § 6; 1989, ch. 446, § 1; 1989, ch. 447, § 1; 1989, ch. 448, § 1; 1989, ch. 449, § 1; 1991, ch. 400, § 1; 1993, ch. 377, § 1; 1995, ch. 365, §§ 2, 3, 5; 1997, ch. 326, § 1; 1999, ch. 334, § 2; 2001, ch. 330, §§ 2, 3; 2003, ch. 561, § 3; S.L. 2005, ch. 531, § 3; 2005, ch. 533, § 1; 2007, ch. 482, § 2; 2009, ch. 514, § 5; 2011, ch. 431, § 2; 2019, ch. 460, § 1, effective August 1, 2019.

Note.

Chapter 400, S.L. 1991, which amended this section, in section 4 provides:

APPLICATION OF ACT. The change in the definition of final average salary provided in section 1 of this Act applies to retirement benefits payable after June 30, 1991, but does not apply to contributors who retired before July 1, 1991.”

Cross-References.

Eligibility for retiree health benefits, see § 54-52.1-03.3.

Notes to Decisions

Marital Property.

Trial court’s treatment of husband’s highway patrol retirement fund as marital property was proper, as husband’s retirement fund had no conditions or uncertainties attached to it, unlike wife’s social security benefits, and since husband’s retirement fund was earned during the marriage, it was equitable for the trial court to take it into account in dispersing marital property. Olson v. Olson, 445 N.W.2d 1, 1989 N.D. LEXIS 139 (N.D. 1989).

39-03.1-11.1. Benefit limitations. [Repealed]

Repealed by S.L. 2003, ch. 308, § 7.

39-03.1-11.2. Internal Revenue Code compliance.

The board shall administer the plan in compliance with the following sections of the Internal Revenue Code, as amended, as it applies for governmental plans.

  1. Section 415, including the defined benefit dollar limitation under section 415(b)(1)(A) of the Internal Revenue Code.
    1. The defined benefit dollar limitation under section 415(b)(1)(A) of the Internal Revenue Code, as approved by the legislative assembly, must be adjusted under section 415(d) of the Internal Revenue Code, effective January first of each year following a regular legislative session. The adjustment of the defined benefit dollar limitation under section 415(d) applies to participating members who have had a separation from employment, but that member’s benefit payments may not reflect the adjusted limit prior to January first of the calendar year in which the adjustment applies.
    2. If a participating member’s benefit is increased by plan amendment after the commencement of benefit payments, the member’s annual benefit may not exceed the defined benefit dollar limitation under section 415(b)(1)(A) of the Internal Revenue Code, as adjusted under section 415(d) for the calendar year in which the increased benefit is payable.
    3. If a participating member is, or ever has been, a participant in another defined benefit plan maintained by the employer, the sum of the participant’s annual benefits from all the plans may not exceed the defined benefit dollar limitation under section 415(b)(1)(A) of the Internal Revenue Code. If the participating member’s employer-provided benefits under all such defined benefit plans would exceed the defined benefit dollar limitation, the benefit must be reduced to comply with section 415 of the Internal Revenue Code. This reduction must be made pro rata between the plans, in proportion to the participating member’s service in each plan.
  2. The minimum distribution rules under section 401(a)(9) of the Internal Revenue Code, including the incidental death benefit requirements under section 401(a)(9)(G), and the regulations issued under that provision to the extent applicable to governmental plans. Accordingly, benefits must be distributed or begin to be distributed no later than a member’s required beginning date, and the required minimum distribution rules override any inconsistent provision of this chapter. For a member who attains age seventy and one-half before January 1, 2020, the member’s required beginning date is April first of the calendar year following the later of the calendar year in which the member attains age seventy and one-half or terminates employment. For a member who attains age seventy and one-half after December 31, 2019, the member’s required beginning date is April first of the calendar year following the later of the calendar year in which the member attains age seventy-two or terminates employment.
  3. The annual compensation limitation under section 401(a)(17) of the Internal Revenue Code, as adjusted for cost-of-living increases under section 401(a)(17)(B).
  4. The rollover rules under section 401(a)(31) of the Internal Revenue Code. Accordingly, a distributee may elect to have an eligible rollover distribution, as defined in section 402(c)(4) of the Internal Revenue Code, paid in a direct rollover to an eligible retirement plan, as defined in section 402(c)(8)(B) of the Internal Revenue Code, specified by the distributee. For purposes of this section, “distributee” includes a beneficiary, other than a spouse, of a deceased member, provided however, in the case of a beneficiary other than a spouse, the direct rollover may be made only to an individual retirement account or individual retirement annuity described in section 408 or 408A of the Internal Revenue Code which is established on behalf of the beneficiary and will be treated as an inherited individual retirement account or individual retirement annuity under section 402(c)(11) of the Internal Revenue Code.
  5. If the plan of retirement benefits set forth in this chapter is terminated or discontinued, the rights of all affected participating members to accrued retirement benefits under this chapter as of the date of termination or discontinuance is nonforfeitable, to the extent then funded.

Source:

S.L. 2003, ch. 308, § 4; 2005, ch. 531, § 4; 2007, ch. 482, § 3; 2009, ch. 514, § 6; 2011, ch. 431, § 3; 2013, ch. 432, § 1; 2015, ch. 259, § 3, effective August 1, 2015; 2017, ch. 372, § 1, effective August 1, 2017; 2021, ch. 439, § 2, effective August 1, 2021.

Effective Date.

The 2015 amendment of this section by section 3 of chapter 259, S.L. 2015 became effective August 1, 2015.

39-03.1-11.3. Supplemental retiree benefit payment.

If the board determines that the fund has obtained a total return on investments of nine and six hundredths percent or higher for the fiscal year ending June 30, 2007, or June 30, 2008, the board shall authorize an additional payment equal to seventy-five percent of the January retirement allowance following the fiscal yearend to each eligible retiree in pay status as of that January, including joint and survivor and term certain beneficiaries, under this chapter. The board may only make one payment under this section.

Source:

S.L. 2005, ch. 533, § 2; 2007, ch. 484, § 1.

39-03.1-12. Retirement allowance. [Repealed]

Repealed by S.L. 1987, ch. 444, § 8.

39-03.1-13. Optional retirement. [Repealed]

Repealed by S.L. 1987, ch. 444, § 8.

39-03.1-14. Optional retirement allowance. [Repealed]

Repealed by S.L. 1987, ch. 444, § 8.

39-03.1-14.1. Multiple plan membership — Eligibility for benefits — Amount of benefits.

  1. For the purpose of determining eligibility for benefits under this chapter, a member’s years of service is the total of the years of service earned under this chapter and the years of service employment or years of service credit earned in any number of the following, the total of which may not exceed twelve months of credit per year:
    1. The public employees retirement system.
    2. The teachers’ fund for retirement.
    3. The teachers’ insurance and annuity association of America — college retirement equities fund (TIAA-CREF), for service credit earned while employed by North Dakota institutions of higher education.
  2. If a member terminates eligible employment under this chapter, if that member has not received a refund of the member’s accumulated deductions, and if that member begins eligible employment in a plan described in subdivision a or b of subsection 1, that member may elect to remain an inactive member of the system without refund of the member’s accumulated deductions. The election must be made within ninety days after beginning the eligible employment. The board shall terminate the inactive status of a member under this subsection if the member gains eligible employment under this chapter or if the member terminates eligible employment under a plan described in subdivision a or b of subsection 1.
  3. Pursuant to rules adopted by the board, a member who has service credit in the system and in any of the alternate plans described in subdivision a or b of subsection 1 is entitled to benefits under this chapter. The employee may elect to have benefits calculated using the benefit formula in section 39-03.1-11 under either of the following calculation methods:
    1. By using the final average salary as calculated in section 39-03.1-11. If the participating member has worked for less than thirty-six months at retirement, the final average salary is the average salary for the total months of employment.
    2. Using the final average salary as calculated in section 39-03.1-11, with service credit not to exceed one month in any month when combined with the service credit earned in the alternate retirement system.

The board shall calculate benefits for an employee under this subsection by using only those years of service employment earned under this chapter.

Source:

S.L. 1985, ch. 222, § 3; S.L. 1987, ch. 223, § 2; R.M. disapproved December 5, 1989, S.L. 1991, ch. 740; 2003, ch. 308, § 5; 2011, ch. 431, § 4; 2015, ch. 259, § 4, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 4 of chapter 259, S.L. 2015 became effective August 1, 2015.

Note.

The 1989 amendment of this section by S.L. 1989, ch. 223, section 2 was disapproved by R.M. December 5, 1989.

The section is set out above as it read prior to such amendment.

39-03.1-14.2. Benefit payments to alternate payee under qualified domestic relations order.

  1. The board shall pay retirement benefits in accordance with the applicable requirements of any qualified domestic relations order. The board shall review a domestic relations order submitted to it to determine if the domestic relations order is qualified under this section and under rules established by the board for determining the qualified status of domestic relations orders and administering distributions under the qualified orders. Upon determination that a domestic relations order is qualified, the board shall notify the contributor and the named alternate payee of its receipt of the qualified domestic relations order.
  2. A “qualified domestic relations order” for purposes of this section means any judgment, decree, or order, including approval of a property settlement agreement, which relates to the provision of child support, spousal support, or marital property rights to a spouse, former spouse, child, or other dependent of a contributor, is made pursuant to a North Dakota domestic relations law, and which creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a part of the benefits payable to the contributor. A qualified domestic relations order may not require the board to provide any type or form of benefit, or any option, not otherwise provided under the retirement system, or to provide increased benefits as determined on the basis of actuarial value. However, a qualified domestic relations order may require the payment of benefits at the early retirement date notwithstanding that the contributor has not terminated eligible employment. A qualified domestic relations order must specify:
    1. The name and the last-known mailing address of the contributor and the name and mailing address of each alternate payee covered by the order;
    2. The amount or percentage of the contributor’s benefits to be paid by the plan to each alternate payee;
    3. The number of payments or period to which the order applies; and
    4. Each retirement plan to which the order applies.

Source:

S.L. 1989, ch. 392, § 3.

39-03.1-15. Disability retirement. [Repealed]

Repealed by S.L. 1981, ch. 380, § 8.

39-03.1-16. Disability retirement allowance. [Repealed]

Repealed by S.L. 1981, ch. 380, § 8.

39-03.1-17. Severance allowance. [Repealed]

Repealed by S.L. 1987, ch. 444, § 8.

39-03.1-18. Compulsory termination of employment.

A contributor who is at least the age of sixty years may not continue employment with the patrol. The superintendent shall terminate the employment of such a member. The termination is effective no later than the member’s sixtieth birthday.

Source:

S.L. 1949, ch. 239, § 16; 1951, ch. 238, § 1; 1953, ch. 234, § 1; R.C. 1943, 1957 Supp., § 39-03A18; S.L. 1959, ch. 290, § 4; 1967, ch. 295, § 7; 1987, ch. 444, § 7.

39-03.1-19. Refunds in case of resignation or discharge. [Repealed]

Repealed by S.L. 1965, ch. 269, § 9.

39-03.1-20. Payments upon death. [Repealed]

Repealed by S.L. 1965, ch. 269, § 9.

39-03.1-21. Payments in case of death. [Repealed]

Repealed by S.L. 1987, ch. 444, § 8.

39-03.1-21.1. Children’s benefit — Limitation. [Repealed]

Repealed by S.L. 1981, ch. 380, § 8.

39-03.1-22. Payments of allowances.

The allowances granted under the provisions of this chapter may not be increased, decreased, revoked, or repealed except as provided by law.

Source:

S.L. 1949, ch. 239, § 20; 1951, ch. 238, § 1; R.C. 1943, 1957 Supp., § 39-03A22.

39-03.1-23. Exemptions from taxes and executions. [Repealed]

Repealed by S.L. 1987, ch. 386, § 2.

39-03.1-24. Service in the armed forces of the United States. [Repealed]

Repealed by S.L. 1993, ch. 377, § 2.

39-03.1-25. Fraud — Correction of errors.

No person may knowingly make any false statement, or may falsify or permit to be falsified any record or records of the retirement system herein established in any attempt to defraud such system. Should any such change in records fraudulently made or any mistake in records inadvertently made result in any contributor or other beneficiary receiving more or less than the person would have been entitled to had the records been correct, then, on the discovery of such error, the board shall correct such error and shall adjust the payments which shall be made to the contributor in such manner that the benefit to which the contributor was correctly entitled shall be paid.

Source:

S.L. 1949, ch. 239, § 24; 1951, ch. 238, § 1; R.C. 1943, 1957 Supp., § 39-03A25; S.L. 1975, ch. 106, § 421.

39-03.1-26. Payments under other laws.

All payments provided for in this chapter are in addition to any other benefits now or hereafter provided for under the workforce safety and insurance laws of this state.

Source:

S.L. 1949, ch. 239, § 27; 1951, ch. 238, § 1; R.C. 1943, 1957 Supp., § 39-03A26; S.L. 1981, ch. 380, § 7; 1989, ch. 69, § 42; 2003, ch. 561, § 3.

39-03.1-27. Legislative intent.

The legislative assembly in recognition of the value of good employer-employee relationships and the need to recruit and retain qualified highway patrolmen in this state, hereby declares its intent that the state should provide the comparable contribution for retirement of highway patrolmen’s retirement system members as it provides for other state employees. It is the further intent of the legislative assembly that because of the increase in state contributions to the North Dakota highway patrolmen’s retirement system, the members of such system shall not obligate the state to additional payments for federal social security benefits for such members.

Source:

S.L. 1971, ch. 353, § 1; 1989, ch. 447, § 2.

39-03.1-28. Confidentiality of records.

All records relating to the retirement benefits of a member or a beneficiary under this chapter are confidential and are not public records. The information and records may be disclosed, under rules adopted by the board only to:

  1. A person to whom the member has given written consent to have the information disclosed.
  2. A person legally representing the member, upon proper proof of representation, and unless the member specifically withholds consent.
  3. A person authorized by a court order.
  4. A member’s participating employer, limited to information concerning the member’s years of service credit and years of age. The board may share other types of information as needed by the employer to validate the employer’s compliance with existing state or federal laws. Any information provided to the member’s participating employer under this subsection must remain confidential except as provided under subsection 6.
  5. The administrative staff of the retirement and investment office for purposes relating to membership and benefits determination.
  6. State or federal agencies for purposes of reporting on a service provider’s provision of services or when the employer must supply information to an agency to validate the employer’s compliance with existing state or federal laws.
  7. Member interest groups approved by the board on a third-party blind list basis, limited to information concerning the member’s participation, name, and address.
  8. The member’s spouse or former spouse, that individual’s legal representative, and the judge presiding over the member’s dissolution proceeding for purposes of aiding the parties in drafting a qualified domestic relations order under section 39-03.1-14.2. The information disclosed under this subsection must be limited to information necessary for drafting the order.
  9. Beneficiaries designated by a participating member or a former participating member to receive benefits after the member’s death, but only after the member’s death. Information relating to beneficiaries may be disclosed to other beneficiaries of the same member.
  10. Any person if the board determines disclosure is necessary for treatment, operational, or payment purposes, including the completion of necessary documents.
  11. The general public, but only after the board has been unable to locate the member for a period in excess of two years, and limited to the member’s name and the fact that the board has been unable to locate the member.
  12. A government child support enforcement agency for purposes of establishing paternity or establishing, modifying, or enforcing a child support obligation of the member.
  13. A person if the information relates to an employer service purchase under section 39-03.1-10.2, but the information must be limited to the member’s name and employer, the retirement program in which the member participates, the amount of service credit purchased by the employer, and the total amount expended by the employer for that service credit purchase, and that information may only be obtained from the member’s employer.

Source:

S.L. 1987, ch. 224, § 2; 2003, ch. 308, § 6; S.L. 2005, ch. 415, § 14; 2005, ch. 531, § 5; 2007, ch. 482, § 4.

39-03.1-29. Savings clause — Plan modifications.

If the board determines that any section of this chapter does not comply with applicable federal statutes or rules, the board shall adopt appropriate terminology with respect to that section as will comply with those federal statutes or rules, subject to the approval of the employee benefits programs committee. Any plan modifications made by the board pursuant to this section are effective until the effective date of any measure enacted by the legislative assembly providing the necessary amendments to this chapter to ensure compliance with the federal statutes or rules.

Source:

S.L. 1991, ch. 400, § 3; 2013, ch. 432, § 2.

39-03.1-30. Conversion of sick leave.

A member is entitled to credit in the retirement system for each month of unused sick leave, as certified by the employer, if the member or the member’s employer pays an amount equal to the member’s final average salary, times the number of months of sick leave converted, times the employer and employee contribution, plus the required contribution for the retiree health benefits program. Hours of sick leave equal to a fraction of a month are deemed to be a full month for purposes of conversion to service credit. A member may convert all of the member’s certified sick leave or a part of that person’s certified sick leave.

Source:

S.L. 1995, ch. 365, § 4; 1997, ch. 464, § 2; S.L. 2005, ch. 531, § 6; 2007, ch. 482, § 5.

CHAPTER 39-04 Motor Vehicle Registration

39-04-01. Definitions. [Repealed]

Repealed by S.L. 1987, ch. 439, § 2.

39-04-02. Application for the registration of a vehicle — Contents — Penalty.

Application for the registration of a vehicle must be made as provided in this section:

  1. Application must be made by the owner thereof using the legal name as evidenced by a valid state-issued driver’s license, identity card, or any other documentary evidence that confirms to the satisfaction of the director the true identity of the owner, upon appropriate forms approved or furnished by the department, and every application must be signed by the owner and must contain the owner’s county of residence, address, and a brief description of the vehicle to be registered, including the name of the maker, either the engine, serial, or identification number, if any, whether new or used, and the last license number known, and the state in which issued, and, upon the registration of a new vehicle, the date of sale by the manufacturer or dealer to the person first operating the vehicle. When two or more owners are designated, at least one of the owners must comply with the identification requirement in this subsection and all names used must be legal names. The application must contain other information as may be required by the department.
  2. If the vehicle for which registration is sought is a specially constructed, reconstructed, or foreign vehicle, the facts must be stated in the application. The owner of every vehicle which has been registered outside this state shall exhibit to the department the certificate of the title and registration card or other evidence as will satisfy the department that the applicant is the lawful owner or possessor of the vehicle.
  3. If the vehicle for which registration is sought is a new vehicle, no registration may be issued unless a certificate of origin executed by the manufacturer of such vehicle is attached to the application for registration or is attached to the application for the certificate of title for such vehicle. If the new vehicle for which registration is sought is of foreign manufacture, the certificate of origin must be furnished by the importer of such vehicle. The manufacturer or importer of all new vehicles shall designate the total shipping weight of the vehicle on the certificate of origin.
  4. In applying for registration the buyer shall state the buyer’s post-office address and county and city or township of residence and the dealer shall make specific inquiry relative thereto before completing the application.
  5. If the registration is for a semitrailer tank designated as MC306, MC307, MC312, MC330, MC331, or MC338, the applicant must show, upon request by an officer of the highway patrol, the status of compliance with hazardous material rules of the United States department of transportation or of this state. Violation of this subsection is punishable by a fine of one hundred dollars.

Source:

S.L. 1927, ch. 179, §§ 9, 30; 1933, ch. 160, §§ 4, 11; 1935, ch. 176, § 1; 1935, ch. 177, § 1; R.C. 1943, §§ 39-0405, 39-0467; S.L. 1947, ch. 257, § 1; 1955, ch. 244, § 5; 1957, ch. 250, § 1; 1957, ch. 259, § 1; 1957 Supp., §§ 39-0405, 39-0467; S.L. 1959, ch. 289, § 15; 1961, ch. 254, § 1; 1981, ch. 378, § 8; 1987, ch. 445, § 1; 2009, ch. 320, § 1.

39-04-02.1. Change of address.

Whenever any person after making application for or obtaining the registration of a vehicle moves from the address named in the application or shown upon a registration card such person shall within ten days thereafter notify the department of the person’s old and new addresses.

Source:

S.L. 1981, ch. 378, § 2; 2005, ch. 323, § 2.

39-04-03. Size of tires to be given in application when truck, combination truck, or trailer registered. [Repealed]

Repealed by S.L. 1971, ch. 355, § 1.

39-04-04. Register of applicants to be kept by the department.

The department shall file each application received, and when satisfied as to the genuineness and regularity thereof, and that the applicant is entitled thereto, shall register the described vehicle and the owner in books or electronic data processing files or on index cards or film as follows:

  1. Under a distinctive registration number assigned to the vehicle and its owner, referred to in this chapter as the registration number.
  2. Alphabetically under the name of the owner.
  3. Numerically by the serial or identification number of the vehicle.
  4. In the discretion of the department, in any other manner it may deem desirable.

Source:

S.L. 1927, ch. 179, § 10; 1931, ch. 186, § 3; R.C. 1943, § 39-0407; S.L. 1959, ch. 289, § 15; 1981, ch. 378, § 9; 1987, ch 446, § 1.

39-04-05. Grounds for refusing registration.

The department shall refuse registration or any transfer of registration upon any of the following grounds:

  1. That the application contains any false or fraudulent statement or that the applicant has failed to furnish required information or reasonable additional information requested by the department or that the applicant is not entitled to registration of the vehicle under this chapter.
  2. That the vehicle is mechanically unfit or unsafe to be operated or moved upon the highways.
  3. That the department has reasonable ground to believe that the vehicle is a stolen or embezzled vehicle or that the granting of registration would constitute a fraud against the rightful owner or other person having valid lien upon the vehicle.
  4. That the registration of the vehicle stands suspended or revoked for any reason as provided in the motor vehicle laws of this state.
  5. That the required fee has not been paid.
  6. When any sales tax or motor vehicle excise tax, properly due, has not been paid.
  7. For failure to maintain security for payment of basic no-fault benefits and the liabilities covered under motor vehicle liability insurance on a motor vehicle as required by chapter 26.1-41.
  8. For failure to provide proof of payment of the heavy vehicle use tax due, as required, to the internal revenue service.
  9. When the vehicle is operating in violation of the provisions of the international registration plan, international fuel tax agreement, or the unified carrier registration plan.
  10. When a motor carrier has been ordered out of service by the federal motor carrier safety administration.

The director shall promulgate rules and regulations for refusal of registration of vehicles not equipped as required by chapter 39-21.

Source:

S.L. 1927, ch. 179, § 22; 1937, ch. 167, § 1; R.C. 1943, § 39-0408; S.L. 1959, ch. 289, § 15; 1971, ch. 356, § 1; 1975, ch. 265, § 21; 1975, ch. 326, § 1; 1981, ch. 378, § 10; 1985, ch. 317, § 66; 1987, ch. 447, § 1; 1991, ch. 401, § 1; 2005, ch. 324, § 1; 2007, ch. 337, § 1.

39-04-05.1. Refusal to register vehicle — Revoking registration — Appeal.

  1. If the department determines that an applicant for registration of a vehicle is not entitled to registration, it may refuse to register the vehicle. The applicant has no further right to apply for registration on the statements contained in the application unless the department reverses its decision or its decision is reversed by a court of competent jurisdiction.
  2. The department may, after giving notice to the owner and an opportunity for a hearing, revoke the registration of a vehicle if it determines that the vehicle is not entitled to registration. The notice must be served in person or by registered or certified mail.

Source:

S.L. 1981, ch. 378, § 3.

39-04-06. When registration rescinded or suspended.

The department shall rescind or suspend the registration of a vehicle for any of the following:

  1. When the department determines a vehicle is unsafe or unfit to be operated or is not equipped as required by law.
  2. When the person to whom the registration card or registration number plates have been issued makes or permits any unlawful use of the same or permits the use thereof by a person or on a vehicle not entitled thereto.
  3. When the department finds that a vehicle is registered in accordance with a reciprocity agreement, arrangement, or declaration and the vehicle is operated in violation of the agreement.
  4. When the department determines that a motor vehicle is not covered by security for payment of basic no-fault benefits and the liabilities covered under motor vehicle liability insurance as required by chapter 26.1-41.
  5. When the department is satisfied that the registration or registration card, plate, or permit was fraudulently or erroneously issued.
  6. When a registered vehicle has been dismantled or wrecked.
  7. When a registration card, registration plate, or permit is knowingly displayed upon a vehicle other than the one for which issued.
  8. When the department determines that the owner has committed any offense under this chapter involving the registration or the registration card, plate, or permit to be suspended or rescinded.
  9. When the purchaser or transferee of a vehicle fails to present the endorsed and assigned certificate of title to the department for transfer and make application for a new certificate of title within thirty days as required by section 39-05-17.
  10. When the department determines a vehicle is operating in violation of the provisions of the international fuel tax agreement.
  11. When a motor carrier has been ordered out of service by the federal motor carrier safety administration.

Any registration suspended for any of the above reasons must be restored upon compliance with the laws governing vehicle registration.

Whenever a check is returned to the department for want of payment the department shall rescind the registration of the vehicle covered by the check.

Any registration rescinded for want of payment of a check must be restored upon payment of the registration fee and a reasonable cost not to exceed twenty dollars for the collection of the check. If a returned check has a value exceeding one thousand dollars, the department shall also collect an additional fee of one percent of the value of the check.

Source:

S.L. 1927, ch. 179, § 23; R.C. 1943, § 39-0409; S.L. 1953, ch. 235, § 1; 1957 Supp., § 39-0409; S.L. 1959, ch. 289, § 15; 1963, ch. 268, § 1; 1967, ch. 297, § 1; 1973, ch. 286, § 1; 1975, ch. 265, § 22; 1977, ch. 332, § 1; 1979, ch. 187, § 75; 1981, ch. 378, § 11; 1983, ch. 416, § 2; 1985, ch. 317, § 67; 1985, ch. 417, § 1; 1991, ch. 401, § 2; 1995, ch. 366, § 1; 2005, ch. 324, § 2.

39-04-07. Department to suspend registration upon notice of theft or embezzlement.

Whenever the owner of any motor vehicle which is stolen or embezzled files an affidavit alleging either of such facts, the department immediately shall suspend the registration of such vehicle and may not transfer the registration thereof nor reregister the same until such time as it is notified that the owner has recovered such vehicle. Notices given as provided in this section are effective only during the current registration year in which given, but if during such year such vehicle is not recovered a new affidavit may be filed with like effect during the ensuing year. Every owner who has filed an affidavit of theft or embezzlement immediately must notify the department of the recovery of such vehicle.

Source:

S.L. 1927, ch. 179, § 21; R.C. 1943, § 39-0410; S.L. 1959, ch. 289, § 15.

39-04-08. Number plates furnished by the department.

The department shall furnish to every motor vehicle owner two number plates for each registered motor vehicle, and one number plate for each registered motorcycle, trailer, or housetrailer. The department may, in its discretion, furnish only one number plate for each registered apportioned vehicle licensed under the international registration plan as authorized in section 39-19-04, truck tractor, or semitrailer.

Source:

S.L. 1927, ch. 179, § 13; R.C. 1943, § 39-0411; S.L. 1955, ch. 241, § 1; 1957, ch. 251, § 1; 1957 Supp., § 39-0411; S.L. 1959, ch. 289, § 15; 1977, ch. 333, § 1; 1981, ch. 381, § 1; 1985, ch. 418, § 1.

39-04-08.1. Assignment of motor vehicle number plates.

Motor vehicle number plates may not be assigned as a reward for any political activity, in recognition of any political affiliation or membership in any political party, or on the basis of political favoritism. However, an elected state office may be assigned a single or double digit number on a number plate as requested by that official. The department of transportation may adopt rules governing the assignment of numbers on motor vehicle number plates in accordance with this section.

Source:

S.L. 1991, ch. 16, § 7; 1999, ch. 12, § 7; 2001, ch. 331, § 1.

39-04-09. Director may design and issue number plates.

The director may design and issue plates of distinctly different color for each classification of motor vehicle, and there must at all times be a marked contrast between the background color of the plates and that of the numerals and letters on the plates. License plates must be acquired from the North Dakota state penitentiary if the penitentiary has the facilities to manufacture license plates. The director shall make a general issue during the biennium beginning July 1, 2013, and ending June 30, 2015, and continuing into the biennium beginning July 1, 2015, and ending June 30, 2017.

Source:

S.L. 1941, ch. 194, § 2, subs. e2; R.C. 1943, § 39-0412; S.L. 1957, ch. 251, § 2; 1957 Supp., § 39-0412; S.L. 1959, ch. 289, § 15; 1975, ch. 327, § 1; 1987, ch. 449, § 1; 2013, ch. 43, § 14.

Collateral References.

Improper use of automobile license plates as affecting liability or right to recover for injuries, death or damages in consequence of automobile accident, 99 A.L.R.2d 904.

39-04-09.1. Commemorative Lewis and Clark number plates. [Repealed]

Source:

S.L. 1999, ch. 12, § 6; 2001, ch. 331, § 8; 2005, ch. 323, §§ 4, 5; 2015, ch. 260, § 1, effective August 1, 2015.

39-04-10. Special plates for amateur radio station licenseholders.

Owners of motor vehicles required to be registered under subdivisions a and b of subsection 2 of section 39-04-19, who hold an unrevoked and unexpired official amateur radio station license issued by the federal communications commission, Washington, D.C., may receive special plates. The plates will be issued upon application to the department, accompanied by proof of ownership of the amateur radio station license, compliance with the state motor vehicle laws relating to registration and licensing of motor vehicles, and payment of the regular license fee, as prescribed under the North Dakota motor vehicle laws. The special plates will be issued in lieu of the plates ordinarily issued, and must have inscribed on them the official amateur radio call letters of the applicant as assigned by the federal communications commission.

Source:

S.L. 1951, ch. 235, §§ 1, 2; 1957, ch. 253, § 1; R.C. 1943, 1957 Supp., § 39-04121; S.L. 1959, ch. 289, § 15; 1973, ch. 287, § 1; 1981, ch. 378, § 12; 2005, ch. 323, § 3.

39-04-10.1. Manufacturer’s plate — Fee.

A resident factory representative of any motor vehicle manufacturer may procure from the director a manufacturer’s plate, which must be designed by the director, for a fee of one hundred fifty dollars, which fee is for a twelve-month period. If such plate is procured at other than the beginning of the registration period, such fees must be prorated on a monthly basis. The procurement of such manufacturer’s plate by a factory representative is in lieu of the payment of any other registration fees, sales tax, or use tax on the motor vehicle used by the factory representative in the course of employment for the period for which the manufacturer’s plate is current and valid. The manufacturer’s plate may not be used by any person other than the representative to whom it was issued, nor may such plate be used on any vehicle other than that vehicle used by the factory representative in the course of employment. Upon the sale of the vehicle for which such manufacturer’s plate was issued, the plate must be retained by the factory representative and used upon replacement vehicles subsequently acquired from the manufacturer for use in the course of employment.

In addition to the foregoing provisions, a manufacturer of motor vehicles is entitled to use a manufacturer plate on its demonstration vehicles. Such plate must be issued in the name of the manufacturer and must be used solely for demonstration purposes only by the registrant or its designated employees.

Source:

S.L. 1959, ch. 282, § 1; 1973, ch. 288, § 1; 1983, ch. 416, § 3.

39-04-10.2. Special plates for mobility-impaired individuals.

The director may issue, without charge, upon application and payment of the regular license fee, plates marked with the international symbol of accessibility for the mobility impaired, to a motor vehicle owner possessing a parking certificate issued under subsection 4 of section 39-01-15. This section is not applicable to an applicant possessing more than one parking certificate issued under subsection 4 of section 39-01-15.

Source:

S.L. 1979, ch. 408, § 1; 1989, ch. 69, § 43; 1989, ch. 319, § 3; 1993, ch. 376, § 2; 2019, ch. 304, § 3, effective August 1, 2019.

39-04-10.3. Personalized plates.

At the request of a registrant, the department may provide special license plates marked with not more than seven numerals, letters, or combinations of numerals and letters, upon application for a special license plate and payment of an additional fee of twenty-five dollars per registration period, unless the plate is a gold star license plate or a prisoner of war license plate, then there is no additional charge. A personal plate containing a restricted character may not be renewed. The department shall make the special license plates authorized by this section available for motor vehicles registered under section 39-04-10.6, trailers, travel trailers, and motorcycles. The fee for the special license plates issued under this section for vehicles registered under section 39-04-10.6 is a one-time fee of one hundred dollars. The special license plates for motorcycles may contain not more than six numerals, letters, or a combination of not more than six numerals and letters. In the event of sale or transfer of the vehicle, the owner shall remove the special license plates in accordance with section 39-04-36. Upon payment of the applicable transfer fee, the special license plates may be transferred to a replacement motor vehicle.

Source:

S.L. 1981, ch. 378, § 4; 1985, ch. 419, § 1; 1989, ch. 450, § 1; 1991, ch. 402, § 1; 1993, ch. 378, § 1; 1995, ch. 367, § 1; 2013, ch. 284, § 1; 2019, ch. 307, § 1, effective August 1, 2019.

39-04-10.4. Antique motor vehicles — License and fee — Use.

  1. Any motor vehicle which is at least forty years old may be permanently licensed by the department upon the payment of a registration fee of ten dollars. The department shall design and issue a distinctive number plate for this purpose. In lieu of the distinctive number plate, the owner of the motor vehicle may, at the discretion of the director, display on the motor vehicle a number plate from the year in which the motor vehicle was manufactured or in the case of military vehicles, military identification numbers. The number plate from the year of manufacture or military identification numbers may not be used in lieu of a distinctive number plate when it would create a duplication of a number in the recordkeeping system of the department. A number plate from the year of manufacture or military identification numbers must be legible and must be restored to the satisfaction of the department. Notwithstanding section 39-04-11, only one number plate needs to be displayed on a motor vehicle licensed under this subsection. Motor vehicles registered under the provisions of this section may not be used in the routine functions of a business or farming operation.
  2. Any motor vehicle which is at least forty years old may, if not licensed under subsection 1, be permanently licensed using a personalized plate issued under section 39-04-10.3, in which case a one-time fee of one hundred dollars is due.

Source:

S.L. 1981, ch. 378, § 5; 1985, ch. 420, § 1; 1989, ch. 451, § 1; 2009, ch. 321, § 1.

39-04-10.5. Prisoner of war plates — Transfer to certain surviving spouses — Retirement.

On the death of a prisoner of war to whom was issued a special number plate under subdivision o of subsection 2 of section 39-04-18, the director shall comply with this section. If the deceased prisoner of war was survived by a spouse, the director shall transfer the number plate to that spouse’s name, and the spouse may retain the number plate as an active plate. If the surviving spouse remarries, then within thirty days of that remarriage, the surviving spouse shall surrender the plate to the director. On receipt of a surrendered plate, on the death of the surviving spouse, or if the deceased prisoner of war had no surviving spouse, the director shall retire the number used on the number plate. On retirement of a number plate and at the request of the survivors of the deceased prisoner of war, the director shall issue to the survivors one commemorative plaque resembling the number plate that had been issued to the prisoner of war.

Source:

S.L. 1983, ch. 420, § 1; 1987, ch. 450, § 1.

39-04-10.6. Registration of motor vehicles owned by collectors.

A person who owns a motor vehicle that is at least twenty-five years old but that is not eligible for registration under section 39-04-10.4 may register that motor vehicle as a collector’s motor vehicle. The motor vehicle is eligible for collector’s registration if it is owned and operated solely as a collector’s item and if the owner owns another motor vehicle the owner uses for general transportation. A motor vehicle qualifies as a collector’s item under this section only if it is operated on public streets and highways for the purpose of driving the vehicle to and from active entry and participation in parades, car shows, car rallies, other public gatherings held for the purpose of displaying or selling the vehicle, and to and from service or storage facilities. An applicant for registration of a vehicle as a collector’s motor vehicle shall file an affidavit with the director that states the owner’s name and address, the make, year, and the manufacturer’s identification number of the motor vehicle, and a statement that the motor vehicle is owned and operated solely as a collector’s item and not for general transportation purposes. If the director is satisfied that the affidavit is true and correct, the director shall register the motor vehicle as a collector’s motor vehicle on the payment of a registration fee of sixty dollars. The registration is valid as long as the collector’s motor vehicle is owned by the person who applied for the registration under this section. The director shall design and issue distinctive number plates for collector’s motor vehicles registered under this section. In lieu of the distinctive number plates, the owner of the motor vehicle, at the discretion of the director, may display on the motor vehicle number plates from the year in which the motor vehicle was manufactured. The number plates from the year of manufacture may not be used in lieu of distinctive number plates when it would create a duplication of a number in the recordkeeping system of the department. Number plates from the year of manufacture must be legible and must be restored to the satisfaction of the department. A person violating this section or a department rule regarding this section forfeits the right to the registration provided in this section and any registration fees that have been paid.

Source:

S.L. 1989, ch. 452, § 1; 1997, ch. 327, § 1.

39-04-10.7. Special number plates for farm vehicles.

The director shall issue, without an additional charge, upon application and payment of the registration fee, special number plates or validation decals making them distinctly different from other number plates, to any person registering a truck or combination of trucks and trailers as a farm vehicle under section 39-04-19. The director shall determine the form and size of the special number plates or validation decals and shall adopt rules governing the issuance of these special number plates or validation decals.

Source:

S.L. 1989, ch. 455, § 2.

39-04-10.8. National guard number plates.

The director, in cooperation with the adjutant general, shall issue distinctive number plates to members of the national guard. A plate issued under this section must bear the national guard insignia designated by the adjutant general and the letters “NG” before the number. The director may issue the plates to the owner of a passenger motor vehicle, a truck the registered gross weight of which does not exceed twenty thousand pounds [9071.84 kilograms], or a motorcycle. On request of the director, the adjutant general shall certify those members of the national guard eligible to receive the plates. On payment of all other fees required under this chapter for registration of the motor vehicle, and payment of an additional fee of not more than five dollars to cover the cost of issuing the distinctive number plates, the applicant is entitled to issuance of the distinctive number plates. A registrant is eligible for distinctive number plates under this section if the registrant is a member of the national guard or if the registrant has retired from the national guard after twenty years or more of military service. On termination of the registrant’s eligibility, the registrant shall return the distinctive number plates to the director, who shall reissue for a fee of not more than five dollars another number plate to which that registrant is entitled under this chapter. The director and adjutant general shall cooperate in establishing procedures to implement this section.

Source:

S.L. 1991, ch. 403, § 1; 2009, ch. 322, § 1; 2013, ch. 263, § 4.

39-04-10.9. Law enforcement plates.

Upon request, the department shall issue identical plates that contain the word “SHERIFF” for the vehicles used and owned by a sheriff’s department and the word “POLICE” for the motor vehicles used and owned by a city’s police department. The plates must be in black letters and on the designed background in use at the time of issuance. The plates must be provided at actual cost. Notwithstanding section 39-04-11, the plates are the property of the law enforcement agency to which issued. At an appropriate time, replacement of the plates must occur whenever the designed background used by the state changes. Notwithstanding section 39-04-11, a motor vehicle that displays a plate under this section must have a clearly visible distinctive identification number on the rear of the vehicle assigned by the appropriate law enforcement agency.

Source:

S.L. 1997, ch. 328, § 1.

39-04-10.10. North Dakota veterans’ number plates.

  1. The director may issue distinctive number plates to individuals eligible for interment in the North Dakota veterans’ cemetery. The director shall issue a number plate under this section upon receiving:
    1. Payment of all other fees required under this chapter for registration of a motor vehicle;
    2. Payment of an initial fee of fifteen dollars of which ten dollars is to be deposited in the highway tax distribution fund and five dollars is to be deposited in the veterans’ cemetery maintenance fund unless for a plate issued to a veteran who has been awarded the purple heart, then there is not an initial fee; and
    3. Verification of subsequent payments of an annual surcharge of ten dollars paid to the adjutant general unless for a plate issued to a veteran who has been awarded the purple heart, then there is not an annual surcharge.
  2. The department shall collect the fees and the ten dollar surcharge under this section. The department shall report to the legislative assembly on the funds collected under this section during each legislative session. The department shall pay the funds collected under subdivisions b and c of subsection 1 to the adjutant general monthly, who then, within ten days of receipt of the funds, shall deposit five dollars of each initial fee in the veterans’ cemetery maintenance fund and the ten dollar surcharge shall be divided with five dollars being deposited in the veterans’ cemetery trust fund and five dollars being deposited in the veterans’ cemetery maintenance fund in the state treasury. Investment of the fund is the responsibility of the state treasurer who shall have full authority to invest the fund only in the same manner as the state investment board is authorized to make investments. At the request of the adjutant general, the interest in the veterans’ cemetery trust fund must be deposited in the veterans’ cemetery maintenance fund for the purpose of funding salaries and maintenance of the veterans’ cemetery.
  3. The veterans’ cemetery trust fund may accept funds from private and federal sources.

Source:

S.L. 1997, ch. 329, § 2; 2001, ch. 332, § 1; 2007, ch. 319, § 1; 2015, ch. 261, § 1, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 261, S.L. 2015 became effective July 1, 2015.

39-04-10.11. Firefighter’s association plates.

The director, in cooperation with the North Dakota firefighter’s association, shall design a decorative decal that contains an insignia representing service in the pursuit of firefighting and which is to be placed on a distinctive number plate. On payment of all other fees required under this chapter for registration of the motor vehicle, and payment of an additional annual fee of fifteen dollars for deposit in the highway fund, the applicant is entitled to issuance of the decals and plates. However, the director may not issue the decal and plates to the owner of a passenger motor vehicle or a truck the registered gross weight of which exceeds twenty thousand pounds [9071.84 kilograms]. A registrant is eligible for distinctive number plates under this section if the registrant is a member of the North Dakota firefighter’s association. On request of the director, the North Dakota firefighter’s association shall certify those members of the North Dakota firefighter’s association eligible to receive the decals and plates. On termination of the registrant’s eligibility, the registrant shall return the decals and plates to the director, who shall reissue for a fee of not more than five dollars another number plate to which that registrant is entitled under this chapter. The director and the North Dakota firefighter’s association shall cooperate in establishing procedures to implement this section.

Source:

S.L. 2001, ch. 333, § 1; 2009, ch. 322, § 2; 2011, ch. 267, § 1.

39-04-10.12. North Dakota future farmers of America foundation number plates.

The director shall design a decorative decal that contains the insignia of the North Dakota FFA foundation to be placed on a distinctive number plate. On payment of all other fees required under this chapter for registration of the motor vehicle and payment of an additional fee of ten dollars, the applicant is entitled to issuance of the decals and plates. However, the director may not issue the decals and plates to the owner of a passenger motor vehicle or a truck the registered gross weight of which exceeds twenty thousand pounds [9071.84 kilograms].

Source:

S.L. 2003, ch. 309, § 1; 2009, ch. 322, § 3; 2011, ch. 267, § 2.

39-04-10.13. Public or nonprofit organization number plate.

  1. The director shall develop an organization number plate program for distinctive number plates for qualifying public and for nonprofit organizations recognized by the internal revenue service as tax exempt under 26 U.S.C. 501(c)(3). When appropriate, the department shall design a distinctive number plate to minimize the changes to a single application of overlay on the left side of the number plate. The organization may submit a design for the distinctive number plate for approval by the director. Upon approval by the director and proper application with proof of a minimum of fifty applicants and a one-time payment of one thousand five hundred dollars for a certain organization’s number plate, the director shall include the number plate in the organization number plate program.
  2. The following organizations do not qualify for an organization number plate: out-of-state colleges and universities; groups within high schools, junior colleges, universities, and technical schools, including individual boosters, athletic boosters, and similar groups; unions; political organizations; religious organizations; groups that promote racial or social disharmony; and public offices.
  3. Upon proper application for a plate in the organization number plate program and payment of all other fees required under this chapter for registration of the motor vehicle and payment of an additional annual fee of twenty-five dollars, a qualified applicant is entitled to issuance of a certain organization number plate. However, the director may not issue the plates to the owner of a passenger motor vehicle or a truck the registered gross weight of which exceeds twenty thousand pounds [9071.85 kilograms].
  4. The director shall deposit ten dollars of the additional organization number plate fee in the highway tax distribution fund and transfer monthly fifteen dollars to the proper organization to support programs of that organization.

Source:

S.L. 2005, ch. 325, § 1; 2007, ch. 320, § 1; 2009, ch. 322, § 4; 2011, ch. 267, § 3.

39-04-10.14. North Dakota gold star number plates.

  1. The director may issue distinctive number plates to a surviving spouse, parent, including stepmother, stepfather, parent through adoption, and foster parent who stands or stood in loco parentis, grandparents, child, including stepchild and child through adoption, and sibling, including half-brother and half-sister, of a member of the armed forces of the United States who died while serving on active duty during a time of military conflict. The director shall issue a number plate under this section upon receiving payment of all other fees required under this chapter for registration of a motor vehicle.
  2. Plates issued under this section must bear a gold star emblem logo on the left side of the plate and the letters “GS” before the number. The director shall cooperate with the director of the department of veterans’ affairs to design the gold star emblem logo. The director may issue one set of plates per eligible owner of a passenger motor vehicle or a truck the registered gross weight of which does not exceed twenty thousand pounds [9071.85 kilograms].
  3. On request of the director, the department of veterans’ affairs shall certify those surviving family members of deceased members of the United States armed forces listed above as eligible to receive the plates.
  4. Once declared eligible for a gold star plate, the department may not remove the eligibility of a surviving family member.
  5. Once a plate number is issued to an eligible family member, the department may not assign the plate to another eligible person.

Source:

S.L. 2009, ch. 323, § 1; 2013, ch. 284, § 2.

39-04-10.15. Patriotic number plates.

  1. The director shall issue patriotic plates under this section upon receiving:
    1. Payment of all other fees required under this chapter for registration of a motor vehicle;
    2. Payment of an initial fee of twenty-five dollars of which twenty dollars is deposited in the highway tax distribution fund and five dollars is deposited in the veterans’ postwar trust fund; and
    3. Payment of an annual surcharge of twenty-five dollars of which ten dollars is deposited in the highway tax distribution fund and fifteen dollars is deposited in the veterans’ postwar trust fund.
  2. The department shall collect the initial fees and the annual surcharges under this section. Deposits in the veterans’ postwar trust fund under this section must be added to the principal of the fund. Investment of the fund is the responsibility of the state treasurer who shall have full authority to invest the fund only in the same manner as the state investment board is authorized to make investments.
  3. Patriotic plates must include a flag of the United States decal plate, bald eagle decal plate, or boonie stomper decal plate.

History. S.L. 2015, ch. 262, § 1, effective July 1, 2015.

Effective Date.

This section became effective July 1, 2015.

Note.

Section 3 of chapter 262, S.L. 2015 provides, “EFFECTIVE DATE. This Act becomes effective for the issuance of United States flag and bald eagle plates on July 1, 2017, and for the issuance of boonie stomper plates on August 1, 2016.”

39-04-10.16. Special vehicle license plates for volunteer emergency responders and volunteer firefighters. [Effective through August 31, 2022]

  1. As used in this section:
    1. “Fire department” means a certified city fire department, certified rural fire department, or certified fire protection district that has filed a certificate of existence under section 18-04-02.
    2. “Volunteer emergency responder” means an emergency medical services provider certified by the state department of health and the individual’s squad leader for a continuous period exceeding two years and who receives an annual compensation of less than ten thousand dollars.
    3. “Volunteer firefighter” means an active member in good standing with a North Dakota fire department who has had a continuous membership for a period exceeding two years and receives an annual compensation of less than ten thousand dollars from the fire department.
  2. Upon application, the director shall issue red personalized plates to volunteer emergency responders and volunteer firefighters at no initial or annual cost to the volunteers. Qualified applicants are eligible to receive one set of plates. Plates may not be displayed on a vehicle with a registered gross weight exceeding twenty thousand pounds [9071.85 kilograms]. The first three digits of the plate are the last three digits of the zip code where the volunteer’s department is located. The remaining space may contain up to three characters of the volunteer’s choosing. This plate serves as an entrance pass to all North Dakota state parks. In cooperation with the volunteer organizations, the director shall designate qualifications and verification procedures for the plates issued under this section.
  3. On termination of the registrant’s eligibility, the registrant shall return the plates to the director, who shall reissue for a fee of not more than five dollars, and upon payment of applicable registration fees, another number plate to which that registrant is entitled under this chapter.
  4. If a registrant fails to return the plates to the director, the director, upon notification of the registrant’s ineligibility, may revoke the plates and reissue for a fee of not more than five dollars, and upon payment of applicable registration fees, another number plate for which the registrant is entitled under this chapter.

Source:

Adopted by initiated measure #4 on general election ballot approved November 6, 2018, effective December 6, 2018.; 2019, ch. 308, § 1, effective April 26, 2019.

Note.

The measure creating Section 39-04-10.6 was approved by the voters at the general election on November 6, 2018. This measure became effective on December 6, 2018.

39-04-10.16. Special vehicle license plates for volunteer emergency responders and volunteer firefighters. [Effective September 1, 2022]

  1. As used in this section:
    1. “Fire department” means a certified city fire department, certified rural fire department, or certified fire protection district that has filed a certificate of existence under section 18-04-02.
    2. “Volunteer emergency responder” means an emergency medical services provider certified by the department of health and human services and the individual’s squad leader for a continuous period exceeding two years and who receives an annual compensation of less than ten thousand dollars.
    3. “Volunteer firefighter” means an active member in good standing with a North Dakota fire department who has had a continuous membership for a period exceeding two years and receives an annual compensation of less than ten thousand dollars from the fire department.
  2. Upon application, the director shall issue red personalized plates to volunteer emergency responders and volunteer firefighters at no initial or annual cost to the volunteers. Qualified applicants are eligible to receive one set of plates. Plates may not be displayed on a vehicle with a registered gross weight exceeding twenty thousand pounds [9071.85 kilograms]. The first three digits of the plate are the last three digits of the zip code where the volunteer’s department is located. The remaining space may contain up to three characters of the volunteer’s choosing. This plate serves as an entrance pass to all North Dakota state parks. In cooperation with the volunteer organizations, the director shall designate qualifications and verification procedures for the plates issued under this section.
  3. On termination of the registrant’s eligibility, the registrant shall return the plates to the director, who shall reissue for a fee of not more than five dollars, and upon payment of applicable registration fees, another number plate to which that registrant is entitled under this chapter.
  4. If a registrant fails to return the plates to the director, the director, upon notification of the registrant’s ineligibility, may revoke the plates and reissue for a fee of not more than five dollars, and upon payment of applicable registration fees, another number plate for which the registrant is entitled under this chapter.

Source:

Adopted by initiated measure #4 on general election ballot approved November 6, 2018, effective December 6, 2018.; 2019, ch. 308, § 1, effective April 26, 2019; 2021, ch. 352, § 354, effective September 1, 2022.

39-04-11. Display of number plates and tabs.

Unless otherwise provided by law, an individual may not operate a vehicle on a public highway of this state unless the vehicle has a distinctive number assigned to the vehicle by the department, and two number plates, bearing the distinctive number conspicuously displayed, horizontally and in an upright position, one on the front and one on the rear of the vehicle, each securely fastened, except number plates assigned to a house trailer must be attached to the rear of the house trailer. Number plates assigned to a motorcycle or trailer must be attached to the rear of the motorcycle or trailer and may be displayed vertically. When only one number plate is furnished for an apportioned vehicle registered under the international registration plan as authorized in section 39-19-04, truck tractor, or semitrailer, the plate must be attached to the front of the apportioned vehicle or truck tractor and the rear of the semitrailer. The bottom of each number plate must be at a height of not less than twelve inches [30.48 centimeters] above the level surface upon which the vehicle stands. Each plate must be mounted in a visible manner that clearly displays the distinctive number assigned to the vehicle and the name of the state on the plate. As far as is reasonably possible, the plates must at all times be kept free and clear of mud, ice, or snow so as to be clearly visible and all number plates, markers, or evidence of registration or licensing except for the current year must be removed from the vehicle. All vehicle license plates issued by the department are the property of the department for the period for which the plates are valid. An annual registration tab or sticker for the current registration year must be displayed on each number plate, in the area designated by the department for the tab or sticker, in those years for which tabs or stickers are issued in lieu of number plates.

Source:

S.L. 1927, ch. 179, § 14, subss. a, c; R.C. 1943, § 39-0413; S.L. 1957, ch. 251, § 3; 1957 Supp., § 39-0413; S.L. 1959, ch. 289, § 15; 1965, ch. 270, § 1; 1981, ch. 378, § 13; 1981, ch. 381, § 2; 1985, ch. 418, § 2; 1999, ch. 12, § 8; 2017, ch. 260, § 1, effective August 1, 2017.

Notes to Decisions

Violation As Basis for Investigative Stop.

District court incorrectly determined the stop of defendant’s vehicle violated her constitutional right against unreasonable seizure, U.S. Const. amend. IV and N.D. Const. art. I, § 8, as the deputy had an objectively reasonable basis to stop defendant for violating N.D.C.C. § 39-04-11 because her vehicle displayed expired registration tabs. State v. McLaren, 2009 ND 176, 773 N.W.2d 416, 2009 N.D. LEXIS 189 (N.D. 2009).

Displaying an expired registration tag on a license plate in violation of N.D.C.C. § 39-04-11 was sufficient to justify a police officer’s stop of the vehicle because even a minor traffic violation could provide the requisite basis for an investigative stop. Bartch v. N.D. DOT, 2007 ND 201, 743 N.W.2d 109, 2007 N.D. LEXIS 203 (N.D. 2007).

39-04-12. Contents of number plates — Size of letters and numerals on plates — Reflectorized — Tabs or stickers.

  1. Number plates must be of metal or other suitable material bearing the name of the state, either in full or by abbreviation, the number of the year, the slogan “Peace Garden State” and a distinctive number for assignment to each vehicle. The distinctive number may be in figures or a combination of figures and letters and must be of a size clearly distinguishable by law enforcement officers and individuals generally. To reduce highway accidents at night all number plates must be legible for a minimum distance of one hundred feet [30.48 meters] to an approaching motorist by day or night with lawful headlight beams and without other illumination. Each plate must be treated with a reflectorized material according to the specifications prescribed by the department. The department shall furnish for each annual registration a year plate, tab, or sticker to designate the year registration. The plate, tab, or sticker must show the registration year for which issued, and is valid only for that year.
  2. The department may provide to an owner of a fleet of one hundred or more vehicles number plates that are valid for as many as six consecutive years and that are exempt from the requirements of evidence of annual validation. The registrant shall file with the department a corporate surety bond in an amount the department determines to be reasonable and adequate, and conditioned that the owner will pay the annual fee at the beginning of each annual registration period for which the number plates are valid.

Source:

S.L. 1927, ch. 179, § 14, subs. b; R.C. 1943, § 39-0414; S.L. 1957, ch. 251, § 4; 1957 Supp., § 39-0414; S.L. 1959, ch. 289, § 15; 1963, ch. 269, § 1; 1965, ch. 271, § 1; 1971, ch. 357, § 1; 1973, ch. 289, § 1; 1975, ch. 327, § 2; 1977, ch. 334, § 1; 1981, ch. 378, § 14; 1985, ch. 422, § 1; 1985, ch. 423, § 1; 1995, ch. 368, § 1; 2019, ch. 309, § 1, effective August 1, 2019.

39-04-13. Duplicates to be obtained of number plate, tab, sticker, or registration card if lost, mutilated, or illegible — Fee.

If any number plate, tab, sticker, or registration card issued under the provisions of this chapter is lost, mutilated, or becomes illegible, the person who is entitled thereto shall make immediate application for and obtain a duplicate or substitute upon furnishing information of such fact satisfactory to the department and upon payment of the cost of issuing the duplicate item, not to exceed the sum of five dollars for each duplicate number plate, tab, sticker, or registration card issued. The department may issue a duplicate number plate, tab, sticker, or registration card at no cost to the owner when satisfied the vehicle owner did not receive the original number plate, tab, sticker, or registration card which was issued.

Source:

S.L. 1927, ch. 179, § 20; 1933, ch. 160, § 4, subs. c; 1935, ch. 176, § 1, subs. c1; R.C. 1943, § 39-0415; S.L. 1959, ch. 289, § 15; 1963, ch. 265, § 2; 1971, ch. 358, § 1; 1983, ch. 421, § 1; 1989, ch. 453, § 1.

39-04-14. Renewal of registration.

Every vehicle registration, except those described in sections 39-04-14.1 and 39-04-14.4, under this chapter expires on December thirty-first each year and must be renewed annually upon application by the owner and by payment of the fees required by law, such renewal to take effect on the first day of January each year. An owner who has made proper application for renewal of registration of a vehicle previous to January first but who has not received the number plates, plate, or registration card for the ensuing year is entitled to operate or permit the operation of such vehicle upon the highways upon displaying thereon the number plates or plate issued for the preceding year for such time, to be prescribed by the department, as may be required for the issuance of the new plates. If a previously registered motor vehicle whose registered gross weight exceeds twenty thousand pounds [9071.84 kilograms] is purchased during the period the vehicle’s registration in this state is expired, the registration fee must be prorated on a monthly basis from the date of purchase to January first.

Source:

S.L. 1927, ch. 179, § 15; R.C. 1943, § 39-0416; S.L. 1959, ch. 289, § 15; 1963, ch. 270, § 1; 1969, ch. 336, § 2; 1983, ch. 423, § 1; 1993, ch. 379, § 1; 2009, ch. 322, § 5; 2019, ch. 310, § 1, effective July 1, 2019.

39-04-14.1. Renewal of registration of motor vehicles under certain weight.

Except as otherwise provided in this section, the registration of a motor vehicle whose registered gross weight does not exceed twenty thousand pounds [9071.84 kilograms] expires on the last day of the month which is the anniversary of the month it was originally registered. The registration may be renewed annually on application by the owner and payment of fees required by law. The renewal takes effect on the first day of the first month of the registration period. An owner of more than one vehicle qualifying for staggered registration under this section may renew all of the owner’s vehicles in the same month. The director shall prorate the registration fees accordingly. If a previously registered motor vehicle whose registered gross weight does not exceed twenty thousand pounds [9071.84 kilograms] is purchased during the period the vehicle’s registration in this state is expired, the department shall collect the annual registration fee under section 39-04-19 and shall issue registration that expires on the last day of the month that is the anniversary of the month the vehicle was purchased.

Source:

S.L. 1969, ch. 336, § 3; 1983, ch. 422, § 1; 1993, ch. 379, § 2; 2009, ch. 322, § 6.

39-04-14.2. Staggered registration for apportioned vehicles.

The director may establish a procedure for the implementation of a staggered registration system for vehicles registered pursuant to the international registration plan. Procedures established under this section may provide for a one-time collection of up to eighteen months of registration fees.

Source:

S.L. 1995, ch. 366, § 2.

39-04-14.3. Online registration renewal receipt showing compliance with registration is prima facie evidence.

The possession of a receipt, via the department’s online registration renewal service, is prima facie evidence of compliance with motor vehicle registration laws, with reference to the vehicle therein described, for a period of fifteen days from the date of the printed receipt.

Source:

S.L. 2009, ch. 324, § 1.

39-04-14.4. Renewal of motorcycle registration.

Every motorcycle registration under this chapter expires on March thirty-first and must be renewed every year upon application by the owner and by payment of the fees required by law. The renewal takes effect on the first day of April. The department may prorate the initial registration fee.

Source:

S.L. 2019, ch. 310, § 2, effective July 1, 2019.

39-04-15. When registration fees become due and delinquent.

The registration fee for a vehicle becomes due as soon as the vehicle is used upon the highways of this state. The registration for a vehicle becomes delinquent immediately upon expiration of the prior registration.

Source:

S.L. 1927, ch. 179, § 29; 1929, ch. 165, § 1; 1931, ch. 186, § 6; 1933, ch. 160, § 10; R.C. 1943, § 39-0417; S.L. 1951, ch. 241, § 1; 1957 Supp., § 39-0417; S.L. 1959, ch. 289, § 15; 1963, ch. 270, § 2; 1967, ch. 298, § 1; 1969, ch. 336, § 4; 1987, ch. 451, § 1.

Cross-References.

Refunds of registration fees, see § 39-04-39.2.

39-04-15.1. Installment registration of vehicles licensed for a gross weight in excess of thirty-six thousand pounds [16329.33 kilograms] — Delinquencies — Penalty. [Repealed]

Repealed by S.L. 1983, ch. 423, § 2.

39-04-16. Penalty for delinquent registration fees — Exceptions. [Repealed]

Repealed by S.L. 1975, ch. 328, § 1.

39-04-17. Certificate of notary showing compliance with registration is prima facie evidence — Penalty.

The possession of a certificate made out by a notary public or an authorized agent of a licensed vehicle dealer who took the acknowledgment of the application when the vehicle was first registered or required to be registered under the laws of this state, if such certificate shows the date of application, the make, registered weight, and year model of the motor vehicle, the manufacturer’s number of the motor vehicle which such application describes, and further shows that such notary public, or authorized agent of a vehicle dealer, personally mailed the application with the remittance fee, is prima facie evidence of compliance with motor vehicle law with reference to the vehicle therein described, for a period of seventy-five days from the date of such application. Any violation of this section is an infraction punishable by a fine of not less than fifty dollars.

Source:

S.L. 1927, ch. 179, § 36; 1933, ch. 160, § 12; 1935, ch. 176, § 3; R.C. 1943, § 39-0419; S.L. 1959, ch. 289, § 15; 1967, ch. 299, § 1; 1971, ch. 360, § 1; 1983, ch. 424, § 1; 2009, ch. 325, § 1; 2013, ch. 285, § 1.

Notes to Decisions

Reasonable Suspicion to Stop.

Officer had reasonable suspicion to stop defendant’s vehicle, because the officer’s knowledge of the prior driver’s license suspension one month earlier was not too stale to support a reasonable suspicion of unlawful activity, and the officer observed defendant operating a vehicle with no license plates and no viewable registration sticker. State v. Skarsgard, 2007 ND 160, 739 N.W.2d 786, 2007 N.D. LEXIS 166 (N.D. 2007).

In a DUI case, denial of defendant’s motion to suppress evidence obtained during a traffic stop was proper because the vehicle, without license plates and only with an 8 1/2 x 11 sheet of paper in the rear window, provided a reasonable and articulable suspicion to justify stopping the vehicle; the officer did not recognize the sheet of paper as an authentic temporary registration certificate, from the state or another state, and thus he had reasonable grounds to stop the driver and check if the driver had a valid temporary registration certificate in his possession in accordance with state law. City of Grand Forks v. Mitchell, 2008 ND 5, 743 N.W.2d 800, 2008 N.D. LEXIS 6 (N.D. 2008).

N.D.C.C. § 39-04-17 did not insulate all vehicles displaying a certificate from reasonable suspicion sufficient to justify a stop; an officer may constitutionally stop a vehicle despite the vehicle’s display of a temporary registration certificate, so long as the officer could point to specific, articulable facts sufficient to create an objective basis for reasonable suspicion. State v. McLaren, 2009 ND 176, 773 N.W.2d 416, 2009 N.D. LEXIS 189 (N.D. 2009).

Suspension of Dealer’s License.

North Dakota Department of Transportation had authority under N.D.C.C. § 39-22-04 to suspend the car dealer’s motor vehicle dealer’s license for willfully violating N.D.C.C. § 39-04-17, it had the authority to consider past suspensions, and the finding that the dealer willfully violated N.D.C.C. § 39-04-17 was supported by the evidence. Sample v. N.D. DOT, 2009 ND 198, 775 N.W.2d 707, 2009 N.D. LEXIS 209 (N.D. 2009).

Thirty-day Time Limit.

Officer did not have a reasonable and articulable suspicion to justify stop of defendant’s vehicle, and, pursuant to the Fourth Amendment and N.D. Const. art. I, § 8, the trial court improperly denied defendant’s motion to suppress the evidence obtained during the search of the vehicle where there was no evidence of erratic driving or speeding, and the temporary registration sticker displayed on the vehicle pursuant to N.D.C.C. § 39-04-17 did not appear to be unusual. The officer had stopped the vehicle because, in his experience, many people drove on the sticker beyond the 30 days that was allotted; however, the officer’s belief that many people violated the 30-day temporary registration law was an over-generalization that did not give rise to reasonable suspicion that defendant’s automobile was not lawfully registered. State v. Johnson, 2006 ND 248, 724 N.W.2d 129, 2006 N.D. LEXIS 244 (N.D. 2006).

Trial court properly refused to suppress evidence obtained during searches of defendant and his vehicle where an officer personally observed a possible vehicle registration violation in that the temporary registration certificate displayed on the vehicle had no visible printing on it, which was indicative of a temporary certificate that was more than 30 days old in violation of N.D.C.C. § 39-04-17; because defendant then fled when officers commanded him to stop, the subsequent searches of defendant and the vehicle were incident to his arrest for fleeing a peace officer. State v. Oliver, 2006 ND 241, 724 N.W.2d 114, 2006 N.D. LEXIS 245 (N.D. 2006).

Law Reviews.

North Dakota Supreme Court Review (State v. Oliver), 83 N.D. L. Rev. 1085 (2007).

39-04-18. Motor vehicles exempt from registration fees — Reciprocal use of state highways by foreign licensed motor vehicles.

    1. Except as provided in this section, a motor vehicle as defined in section 39-01-01 or a trailer operated or intended to be operated upon a highway, road, or street in this state must be registered annually with the department.
    2. A semitrailer or a farm trailer operated or intended to be operated upon a highway, road, or street in this state must be registered with the department either annually or permanently, at the discretion of the registrant.
    3. A vehicle being operated on highways, roads, or streets of this state must display license plates as furnished by the department upon payment of the fees prescribed in this chapter.
    4. Upon satisfactory proof to the department that a motor vehicle owned by a resident of this state was not used upon any of the highways of this state in any one or more years, the motor vehicle may be registered upon payment of the registration fee for the current year.
    5. A resident of the state of North Dakota, serving in the armed forces of the United States for a period of time greater than one year, may relicense a motor vehicle owned by the veteran without paying a fee or penalty for the intervening years when the vehicle was not licensed, providing the veteran shows by suitable affidavit that the vehicle was not in use during a year in which it was not licensed. The vehicle must be licensed for the license fee applicable to the month of the year in which application for license is made.
  1. The following motor vehicles may be operated upon the highways, roads, and streets of this state without being registered, under such limitations as are herein specified; provided, however, that whenever the department determines that it is to the best interest of the state of North Dakota and determines by reciprocal agreement or otherwise that as great or greater privileges are not granted North Dakota residents while traveling in other states or territories, the department may cancel or limit the application of any exception to residents or motor vehicles from such other state or territory:
    1. Farm tractors as defined in section 39-01-01, special mobile equipment and road rollers and other road construction or maintenance machinery that cannot be operated on the highways and streets of this state in a normal operating manner.
    2. Motor vehicles owned by or in possession of Indian mission schools, by this state or any of its agencies, departments, or political subdivisions, including school districts possessing a motor vehicle or vehicles used for driver education instruction, or by any entity located upon the international boundary line between the United States of America and Canada used and maintained as a memorial to commemorate the long-existing relationship of peace and good will between the people and the governments of the United States of America and Canada and to further international peace among the nations of the world; provided, however, that the vehicles must display license plates provided by the department at actual cost. Upon request, qualifying law enforcement motor vehicles must be issued a license plate under section 39-04-10.9.
    3. Motor vehicles registered in any other state or territory when coming into this state a distance not exceeding twenty miles [32.19 kilometers]; provided, however, that such motor vehicles have displayed thereon the current license plates issued by the state or territory in which they are registered and provided further that the owners or operators thereof are not residents of this state. Nor may such vehicles be required to pay any other tax, and no registration fee or tax may be required when such vehicles do not leave the incorporated limits of any city while in the state of North Dakota within a zone circumscribed by a line running parallel to the corporate limits of any city or contiguous cities and twenty miles [32.19 kilometers] distant therefrom. This section does not prevent trucks from coming into the state such distance as shall be necessary to reach the nearest railway shipping station. For purposes of this subdivision, an individual is a resident of this state if the individual is gainfully employed or engages in any trade, profession, or occupation within this state and owns, leases, or rents a place of residence or otherwise lives within this state for the purposes of employment, or regardless of domicile or any other circumstance, remains in this state for a period of at least ninety consecutive days. For purposes of this subdivision, a resident does not include a student at a university, college, or technical school in this state or a daily commuter from another jurisdiction if that jurisdiction exempts the vehicle of a daily commuter from this state from registration in that jurisdiction under a reciprocity agreement.
    4. Motor vehicles owned and operated by the United States government, or any foreign government, or any of their agencies or departments; provided, however, that such motor vehicles must display identification plates.
    5. Passenger motor vehicles registered in any other state or territory; provided, however, that such motor vehicles have displayed thereon the current license plates issued by the state or territory in which they are registered and provided further that the owners or operators thereof are not residents of this state. For purposes of this subdivision, an individual is a resident of this state if the individual is gainfully employed or engages in any trade, profession, or occupation within this state and owns, leases, or rents a place of residence or otherwise lives within this state for the purposes of employment, or regardless of domicile or any other circumstance, remains in this state for a period of at least ninety consecutive days. For purposes of this subdivision, a resident does not include a student at a university, college, or technical school in this state or a daily commuter from another jurisdiction if that jurisdiction exempts the vehicle of a daily commuter from this state from registration in that jurisdiction under a reciprocity agreement.
    6. Motor vehicles owned and operated by a manufacturer of motor vehicles when such motor vehicles are operated or moved such distance as may be authorized by the director from the factory where manufactured or assembled, to a depot or place of shipment or other point of delivery; provided, however, that such vehicles have displayed in plain sight the name and address of the manufacturer and a written permit from local police authorities.
    7. Motor vehicles owned and operated by a licensed North Dakota motor vehicle dealer from a railway depot, warehouse, salesroom, or place of shipment; provided, however, that such vehicles have displayed in plain sight the name and address of the dealer and a written permit from the local police authorities.
    8. Motor vehicles owned and operated by nonresidents engaged in harvest of agricultural products from June first through December thirty-first of any one year; provided, however, that such motor vehicles have displayed thereon a decal or other means of identification issued by the director upon payment of a fee of fifty dollars.
    9. Vehicles owned by nonresident military personnel stationed in this state and operated by such military personnel or their dependents, provided such vehicle is registered in the state or territory whereof such military person is a resident, and provided further that current license plates from such state or territory are displayed on such vehicle.
    10. Motor vehicles not exceeding twenty-six thousand pounds [11793.40 kilograms] registered gross weight owned and operated by a disabled veteran under the provisions of Public Law 79-663 [38 U.S.C. 3901], a disabled veteran who has a one hundred percent service-connected disability as determined by the department of veterans’ affairs, or a disabled veteran who has an extra-schedular rating to include individual unemployability that brings the veteran’s total disability rating to one hundred percent as determined by the department of veterans’ affairs is entitled to display either a distinctive license plate or a standard plate that does not identify the veteran as a veteran or disabled veteran which is issued by the department. This exemption applies to no more than two such motor vehicles owned by a disabled veteran at any one time. A surviving spouse of a disabled veteran who has not remarried and who is receiving department of veterans’ affairs dependency and indemnity compensation retains the exemption of the deceased veteran who qualified under this subdivision for one vehicle.
    11. Motor vehicles having not over two axles and not being used in combination owned and operated by nonresidents and any motor vehicle or combination of three axles or more operated in this state pursuant to a proportional licensing or other agreement or arrangement with any jurisdiction having motor vehicle registration authority.
    12. Motor vehicles owned and operated by a resident building mover or by a resident well driller; provided, however, that such vehicles are used only for moving buildings or building-moving equipment, or are used only for drilling water wells or moving water well-drilling equipment; provided, further, that such vehicles display a license plate issued by the director upon the payment of a fee of twenty-five dollars for two axle trucks, fifty dollars for tandem axle trucks and single axle truck-tractor units, and seventy-five dollars for each tandem axle truck-tractor unit.
    13. Any trailer, semitrailer, or farm trailer when the gross weight, not including the weight of the towing vehicle, does not exceed one thousand five hundred pounds [680.39 kilograms] and it is not for hire or commercial use, or when used to transport recreational vehicles or boats and it is not for hire or commercial use.
    14. Any vehicle which is driven or moved upon a highway only for the purpose of crossing the highway from one property to another. The crossing must be made at an angle of approximately ninety degrees to the direction of the highway.
    15. Passenger motor vehicles, house cars, or pickup trucks not exceeding twenty thousand pounds [9071.84 kilograms] registered gross weight owned and operated by a resident who, while serving in the United States armed forces, was a prisoner of war and has received an honorable discharge from the United States armed forces is entitled to display a distinctive license plate issued by the department. This exemption also applies to any passenger motor vehicle, house car, or pickup truck not exceeding twenty thousand pounds [9071.84 kilograms] registered gross weight subsequently purchased or acquired by such a former prisoner of war. This exemption applies to no more than two motor vehicles owned by a former prisoner of war at any one time. A surviving spouse of a former prisoner of war who has not remarried retains the exemption of the deceased veteran who qualified under this subdivision for one vehicle.
    16. Motor vehicles not exceeding twenty-six thousand pounds [11793.40 kilograms] registered gross weight owned and operated by a veteran who was awarded the purple heart is entitled to a distinctive license plate issued by the department. This exemption applies to one motor vehicle owned by a veteran who was awarded the purple heart.

Upon satisfactory proof to the department that a motor vehicle owned by a resident of this state was not used upon any of the highways of this state in any one or more years, the motor vehicle may be registered upon payment of the registration fee for the current year.

Any resident of the state of North Dakota, serving in the armed forces of the United States for a period of time greater than one year, may relicense any motor vehicle owned by the veteran without paying any fee or penalties for the intervening years when the vehicle was not licensed, providing the veteran shows by suitable affidavit that the vehicle was not in use during any year in which it was not licensed. The vehicle must be licensed for the license fee applicable to the month of the year in which application for license is made.

Each motor vehicle loaned or furnished by a licensed North Dakota motor vehicle dealer to a school district in North Dakota to be used exclusively for instructing pupils in the driver education and training program conducted by the school district will be assigned an official license plate. The license plates must be used only on the motor vehicles furnished by dealers and used in the driver education program, and for no other purpose except for garaging and safekeeping of the motor vehicle.

A person may not use a driver education motor vehicle bearing official license plates for any purpose other than driver education course instruction. A person is not in violation of this subdivision if the person is required by the dealer or a school administrator to house or otherwise protect the vehicle at the person’s home or other facility.

Any vehicle which has been issued this special motor vehicle license may be registered under the regular motor vehicle registration law, by payment of the difference between the amount paid for the special motor vehicle license and the regular registration fee for such vehicle.

Any vehicle which has been issued this special motor vehicle license and is found being operated upon the highways of this state without being equipped with special house-moving or well-drilling equipment shall forfeit the fee paid and, in addition, must be required to register under the regular motor vehicle registration law of this state. None of the above limitations may be construed as restricting the operation of the special licensed vehicle when such operation would not require a greater fee than that paid for this operation.

Source:

S.L. 1927, ch. 179, §§ 7, 8, 17, 19, 28, 29; 1929, ch. 165, § 1; 1929, ch. 167, § 1; 1931, ch. 186, §§ 4, 6; 1933, ch. 160, §§ 6, 10; 1933, ch. 162, §§ 2, 4; 1935, ch. 186, § 1; 1935, ch. 187, § 1; 1939, ch. 168, § 1; 1941, ch. 192, §§ 1, 2; R.C. 1943, §§ 39-0402 to 39-0404, 39-0421, 39-0425, 39-0432, 39-0441, 39-0446, 39-0449, 39-0457; S.L. 1947, ch. 263, § 1; 1947, ch. 271, §§ 1, 2, 4; 1947, ch. 272, § 1; 1947, ch. 276, § 1; 1949, ch. 242, §§ 1, 2; 1951, ch. 240, § 1; 1951, ch. 242, § 1; 1953, ch. 236, §§ 1 to 3; 1953, ch. 240, § 1; 1955, ch. 242, § 1; 1955, ch. 246, §§ 1 to 3; 1955, ch. 248, § 1; 1957, ch. 254, § 1; 1957, ch. 266, §§ 1 to 3; 1957 Supp., §§ 39-0401 to 39-0403, 39-0421, 39-0425, 39-0432, 39-0446, 39-0449, 39-0473 to 39-0475; S.L. 1959, ch. 289, § 15; 1963, ch. 405, § 3; 1967, ch. 300, § 1; 1967, ch. 305, §§ 1, 2; 1969, ch. 337, § 1; 1971, ch. 361, § 1; 1973, ch. 291, § 1; 1975, ch. 106, § 422; 1975, ch. 329, § 1; 1977, ch. 327, § 3; 1977, ch. 335, § 1; 1979, ch. 187, § 76; 1979, ch. 409, §§ 2, 3; 1979, ch. 410, § 1; 1981, ch. 378, §§ 16, 17; 1981, ch. 382, § 1; 1983, ch. 82, § 72; 1983, ch. 425, § 1; 1987, ch. 452, § 1; 1989, ch. 356, § 15; 1989, ch. 454, § 1; 1997, ch. 328, § 2; 2001, ch. 329, § 2; 2001, ch. 334, § 1; 2003, ch. 310, § 1; 2005, ch. 324, § 3; 2007, ch. 321, § 1; 2009, ch. 322, § 7; 2011, ch. 267, § 4; 2011, ch. 447, § 2; 2011, ch. 268, § 1; 2013, ch. 284, § 3; 2015, ch. 261, § 2, effective August 1, 2015; 2015, ch. 262, § 2, effective August 1, 2015; 2019, ch. 309, § 2, effective July 1, 2019.

Effective Date.

The 2015 amendment of this section by section 2 of chapter 261, S.L. 2015 became effective July 1, 2015.

The 2015 amendment of this section by section 2 of chapter 262, S.L. 2015 became effective July 1, 2015.

Note.

Section 39–04–18 was amended 2 times by the 2015 Legislative Assembly. Pursuant to Section 1–02–09.1, the section is printed above to harmonize and give effect to the changes made in Section 2 of Chapter 262 Session Laws 2015, House Bill 1360, and Section 2 of Chapter 261, Session Laws 2015, Senate Bill 2142.

Cross-References.

Reciprocity agreements, see ch. 39-19.

Notes to Decisions

Interstate Commerce.

The state may impose a charge upon motor vehicles engaged exclusively in interstate commerce so long as the charge is a fair contribution to the cost of construction and maintenance of the roads and the regulation of traffic. State v. Goeson, 65 N.D. 706, 262 N.W. 70, 1935 N.D. LEXIS 157, 1935 N.D. LEXIS 158 (N.D. 1935).

Registration of Vehicle.

Court properly granted summary judgment in favor of an insurer in a declaratory judgment action to determine the applicability of an exception to a motor vehicle exclusion in a farmer’s policy for vehicles primarily used as farm implements. The farmer’s semi-truck did not fit within the exception to the policy exclusion because the semi-truck was not both designed for and primarily used as a farm implement, the primary purpose of the design of the truck was to transport cargo for long distances, and, under the plain language of the policy, the farmer’s use of the truck made it subject to motor vehicle registration requirements. Nationwide Mut. Ins. Cos. v. Lagodinski, 2004 ND 147, 683 N.W.2d 903, 2004 N.D. LEXIS 279 (N.D. 2004).

Collateral References.

Validity of motor vehicle registration laws applied to corporation domiciled in state but having branch trucking bases in other states, 16 A.L.R.2d 1414.

Lack of proper automobile registration or operator’s license as evidence of operator’s negligence, 29 A.L.R.2d 963.

Validity and construction of statute making it a criminal offense for the operator of a motor vehicle not to carry or display his operator’s license or the vehicle registration certificate, 6 A.L.R.3d 506.

39-04-18.1. Failure to register upon gainful employment.

A person operating a motor vehicle in violation of subdivision c or e of subsection 2 of section 39-04-18 shall purchase an annual registration for that motor vehicle for a fee that is not discounted from the appropriate amount listed in a table in section 39-04-19. A law enforcement officer may issue a registration for that vehicle and shall remit the registration fee to the department of transportation. The department shall provide for evidence of registration to be issued by a law enforcement officer enforcing subdivision c or e of subsection 2 of section 39-04-18.

Source:

S.L. 2001, ch. 335, § 1.

39-04-18.2. Temporary motor vehicle registration — Fees.

  1. Any owner, lessee, or operator of a motor vehicle who is employed in this state on a temporary or full-time basis may choose to purchase a temporary registration permit in lieu of registering the vehicle pursuant to section 39-04-18, if the vehicle displays a valid registration and license plate from another jurisdiction and is properly insured. Application for the temporary registration permit must be made in the manner and form prescribed by the department. The temporary registration permit must bear a distinctive number assigned to the vehicle and an expiration date. At all times the operator shall ensure that the temporary registration permit is displayed and clearly visible on the vehicle in a manner prescribed by the department. Motor vehicles temporarily registered under this section may be registered without a title transfer or imposition of motor vehicle excise tax. The operator shall keep evidence of registration from the other jurisdiction in the motor vehicle and provide evidence of registration to a law enforcement officer or the department, upon request.
  2. Motor vehicles temporarily registered in this state must be furnished a permit as follows:
    1. Passenger vehicles, pickups, vans, and trucks not exceeding twenty thousand registered gross weight pounds [9071.84 kilograms] temporarily registered in this state must be furnished a permit upon payment of sixty dollars for six months or one hundred twenty dollars for twelve months of required registration.
    2. Trucks or combinations of trucks and trailers weighing more than twenty thousand registered gross weight pounds [9071.84 kilograms] temporarily registered in this state must be furnished a permit upon payment of the following fees:
    3. Motorcycles temporarily registered in this state must be furnished a permit upon payment of thirty dollars for six months or sixty dollars for twelve months.
    4. An additional fee of ten dollars applies to each temporary registration permit.

Weight Six-Month Fee Twelve-Month Fee 20,001 - 42,000 $220 $440 42,001 - 62,000 $380 $760 62,001 - 82,000 $530 $1,060 82,001 - 105,500 $900 $1,800

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Source:

S.L. 2011, ch. 268, § 2.

39-04-19. Motor vehicle registration fees and mile tax.

Motor vehicles required to pay registration fees or a mile tax shall pay the following fees:

  1. Nonresidents electing to pay mile tax in lieu of registration, when authorized to do so by the department, shall pay a fee of twenty dollars for a trip permit which is valid for a period of seventy-two hours. All fees collected under the provisions of this subsection must be credited to the state highway fund.
  2. Motor vehicles required to be registered in this state must be furnished license plates upon the payment of the following annual fees; however, if a motor vehicle, including a motorcycle or trailer, first becomes subject to registration other than at the beginning of the registration period, such fees must be prorated on a monthly basis. The minimum fee charged hereunder must be five dollars:
    1. Passenger motor vehicles:
    2. Schoolbuses, buses for hire, buses owned and operated by religious, charitable, or nonprofit organizations and used exclusively for religious, charitable, or other public nonprofit purposes, and trucks or combination trucks and trailers, including commercial and noncommercial trucks, except those trucks or combinations of trucks and trailers which qualify for registration under this subsection or subsection 5:
    3. Motorcycles, fifteen dollars.
  3. Motor vehicles acquired by disabled veterans under the provisions of Public Law 79-663 [38 U.S.C. 3901] are exempt from the payment of state sales or use tax and, if paid, such veterans are entitled to a refund. This exemption also applies to any passenger motor vehicle or pickup truck not exceeding twenty-six thousand pounds [11793.40 kilograms] registered gross weight but shall apply to no more than two such motor vehicles owned by a disabled veteran at any one time.
    1. Each trailer, except a semitrailer or farm trailer, required to be registered under this chapter must be furnished registration plates upon the payment of a twenty dollar annual fee. A trailer, semitrailer, or farm trailer not required to be registered under this chapter must be furnished an identification plate upon the payment of a fee of five dollars.
    2. A semitrailer or farm trailer required to be registered under this chapter must be furnished:
      1. Permanent registration plates upon the payment of a permanent registration fee of one hundred twenty dollars. The permanent registration is valid until ownership of the semitrailer or farm trailer is transferred, assigned, or if the semitrailer is destroyed or otherwise completely removed from the service of the owner; or
      2. Annual registration upon the payment of a twenty dollar annual fee.
    3. Upon the request of a person with a trailer or farm trailer to whom a registration or identification plate is provided under this subsection, the department shall provide a plate of the same size as provided for a motorcycle. The department shall provide notification of this option to the person before the replacement or issuance of the plate.
  4. Trucks or combinations of trucks and trailers weighing more than twenty thousand but not more than one hundred five thousand five hundred pounds [more than 9071.84 but not more than 47854.00 kilograms] which are used as farm vehicles only, are entitled to registration under the following fee schedule and the provisions of this subsection. Farm vehicles are considered, for the purpose of this subsection, as trucks or combinations of trucks and trailers weighing more than twenty thousand but not more than one hundred five thousand five hundred pounds [more than 9071.84 but not more than 47854.00 kilograms] owned, or leased for at least one year by a bona fide resident farmer who uses the vehicles exclusively for transporting the farmer’s own property or other property on a farm work exchange basis with other farmers between farms and the usual local trading places but not in connection with any commercial retail or wholesale business being conducted from those farms, nor otherwise for hire. In addition to the penalty provided in section 39-04-41, any person violating this subsection shall license for the entire license period the farm vehicle at the higher commercial vehicle rate in accordance with the weight carried by the farm vehicle at the time of the violation.
  5. A motor vehicle registered in subsection 5 may be used for custom combining operations by displaying identification issued by the department and upon payment of a fee of twenty-five dollars.

YEARS REGISTERED GrossWeights 1st, 2nd,3rd, 4th, 5th,and 6th Years 7th, 8th,and 9thYears 10th, 11th,and 12thYears 13th andSubsequentYears Less than 3,200 $73 $65 $57 $49 3,200 - 4,499 93 81 69 57 4,500 - 4,999 111 94 79 63 5,000 - 5,999 142 120 98 76 6,000 - 6,999 175 146 117 89 7,000 - 7,999 208 172 137 102 8,000 - 8,999 241 199 157 115 9,000 and over 274 225 177 128

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A house car is subject to registration at the rates prescribed for other vehicles under this subdivision modified by using the weight applicable to a vehicle whose weight is forty percent of that of the house car, but not using a weight of less than four thousand pounds [1814.35 kilograms].

A pickup truck is subject to registration at the rates prescribed for other vehicles under this subdivision by applying the shipping weight of the vehicle to the fee schedule. At a minimum, the registered gross weight displayed on the registration card for a pickup truck must be twice the shipping weight of the vehicle. Unless otherwise exempted by this chapter, the owner of a pickup truck shall request the registered gross weight of the pickup truck be increased to ensure the registered gross weight is sufficient to include the total weight of the vehicle and any load transported on or by the vehicle. For purposes of this subdivision, a pickup truck is a motor vehicle with a manufacturer’s gross vehicle weight rating of less than eleven thousand five hundred pounds [5216.31 kilograms], with an unladen weight of less than eight thousand pounds [3628.74 kilograms], and which is equipped with an open box-type bed not exceeding nine feet [2.74 meters] in length.

YEARS REGISTERED GrossWeights 1stthrough6th Years 7ththrough9th Years 10ththrough12th Years 13ththrough19thYears 20th andSubsequent Years Not over 4,000 $71 $58 $53 $50 $49 4,001 - 6,000 76 63 57 51 50 6,001 - 8,000 81 68 61 52 51 8,001 - 10,000 86 73 65 54 53 10,001 - 12,000 91 78 69 56 55 12,001 - 14,000 96 83 73 59 58 14,001 - 16,000 101 88 77 62 61 16,001 - 18,000 106 93 81 64 63 18,001 - 20,000 109 96 83 65 64

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YEARS REGISTERED GrossWeights 1st, 2nd, 3rd,4th, 5th, 6th,and 7th Years 8th, 9th, 10th,11th, and12th Years 13th andSubsequentYears 20,001 - 22,000 $139 $113 $100 22,001 - 26,000 191 161 145 26,001 - 30,000 252 210 188 30,001 - 34,000 318 263 235 34,001 - 38,000 379 312 278 38,001 - 42,000 440 361 320 42,001 - 46,000 501 409 363 46,001 - 50,000 562 458 406 50,001 - 54,000 632 516 457 54,001 - 58,000 693 565 500 58,001 - 62,000 755 614 543 62,001 - 66,000 815 662 586 66,001 - 70,000 876 711 628 70,001 - 74,000 937 760 671 74,001 - 78,000 998 809 714 78,001 - 82,000 1,059 858 757 82,001 - 86,000 1,182 963 844 86,001 - 90,000 1,304 1,067 931 90,001 - 94,000 1,426 1,172 1,018 94,001 - 98,000 1,548 1,277 1,106 98,001 - 102,000 1,670 1,381 1,193 102,001 - 105,500 1,792 1,486 1,280

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YEARS REGISTERED GrossWeights 1st, 2nd,3rd, 4th, 5th,and 6th Years 7th and8thYears 9th and10thYears 11th andSubsequentYears 20,001 - 22,000 $111 $97 $83 $65 22,001 - 24,000 116 101 86 67 24,001 - 26,000 124 107 90 69 26,001 - 28,000 135 115 96 73 28,001 - 30,000 144 123 102 77 30,001 - 32,000 159 136 113 86 32,001 - 34,000 169 144 119 90 34,001 - 36,000 179 152 125 94 36,001 - 38,000 189 160 131 98 38,001 - 40,000 199 168 137 102 40,001 - 42,000 209 176 143 106 42,001 - 44,000 219 184 149 110 44,001 - 46,000 229 192 155 114 46,001 - 48,000 239 200 161 118 48,001 - 50,000 249 208 167 122 50,001 - 52,000 269 226 183 136 52,001 - 54,000 279 234 189 140 54,001 - 56,000 289 242 195 144 56,001 - 58,000 299 250 201 148 58,001 - 60,000 309 258 207 152 60,001 - 62,000 319 266 213 156 62,001 - 64,000 329 274 219 160 64,001 - 66,000 339 282 225 164 66,001 - 68,000 349 290 231 168 68,001 - 70,000 359 298 237 172 70,001 - 72,000 369 306 243 176 72,001 - 74,000 379 314 249 180 74,001 - 76,000 389 322 255 184 76,001 - 78,000 399 330 261 188 78,001 - 80,000 409 338 267 192 80,001 - 82,000 419 346 273 196 82,001 - 84,000 429 368 316 272 84,001 - 86,000 449 385 330 284 86,001 - 88,000 469 402 344 296 88,001 - 90,000 489 419 358 308 90,001 - 92,000 509 436 372 320 92,001 - 94,000 529 453 386 332 94,001 - 96,000 549 470 400 344 96,001 - 98,000 569 487 414 356 98,001 - 100,000 589 504 428 368 100,001 - 102,000 609 521 442 380 102,001 - 104,000 629 538 456 392 104,001 - 105,500 649 555 470 404

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Source:

S.L. 1927, ch. 179, § 25; 1931, ch. 186, § 5; 1933, ch. 160, § 8; 1933, ch. 161, § 1; 1933, ch. 162, § 2; 1935, ch. 180, § 1; 1935, ch. 187, § 1; 1941, ch. 194, § 2; R.C. 1943, §§ 39-0422 to 39-0425, 39-0429, 39-0438, 39-0451; S.L. 1945, ch. 248, § 1; 1945, ch. 251, §§ 1, 4; 1947, ch. 267, § 1; 1947, ch. 269, § 1; 1947, ch. 271, § 2; 1951, ch. 243, § 1; 1951, ch. 244, §§ 1, 3; 1953, ch. 237, §§ 4 to 6; 1953, ch. 239, § 1; 1955, ch. 244, §§ 1, 2, 4; 1957, ch. 255, § 1; 1957, ch. 256, § 4; 1957, ch. 257, § 1; 1957 Supp., §§ 39-0422, 39-0424, 39-0425, 39-0429, 39-04312, 39-0451; S.L. 1959, ch. 289, § 15; 1961, ch. 255, § 1; 1963, ch. 265, § 3; 1963, ch. 271, § 1; 1963, ch. 405, § 4; 1967, ch. 301, §§ 1, 2; 1969, ch. 338, § 1; 1971, ch. 357, § 2; 1973, ch. 291, § 2; 1973, ch. 292, § 1; 1973, ch. 293, § 1; 1973, ch. 294, § 1; 1975, ch. 330, § 1; 1975, ch. 331, § 1; 1977, ch. 327, § 4; 1977, ch. 328, § 2; 1977, ch. 336, § 1; 1977, ch. 337, § 1; 1979, ch. 409, § 4; 1979, ch. 411, § 1; 1979, ch. 412, § 1; 1979, ch. 413, § 1; 1979, ch. 414, § 1; 1981, ch. 383, § 2; 1983, ch. 422, § 2; 1983, ch. 426, § 1; 1983, ch. 427, § 1; 1987, ch. 18, §§ 2, 3; 1987, ch. 453, §§ 1, 2; 1989, ch. 455, § 1; 1991, ch. 404, § 1; 1997, ch. 51, §§ 29, 30; 1999, ch. 12, § 9; 1999, ch. 335, § 1; 1999, ch. 336, § 1; 2001, ch. 331, § 2; 2003, ch. 12, § 5; 2005, ch. 40, § 10; 2009, ch. 40, § 17; 2009, ch. 322, § 8; 2009, ch. 326, § 1; 2011, ch. 267, § 5; 2019, ch. 309, § 3, effective August 1, 2019.

Note.

Section 5 of chapter 13, S.L. 1995, provides:

Law Enforcement Training Academy Fee — Collection. In addition to any other registration fee, a law enforcement training academy fee of two dollars is imposed on a passenger motor vehicle, a house car, and a truck weighing twelve thousand pounds or under that is subject to registration under title 39. The fee is payable when the registration under title 39 is payable. Each month the director of the department of transportation shall transfer to the highway fund the law enforcement training academy fees collected in accordance with this Act.”

Cross-References.

Motorcycle safety education fee in addition to registration fee, see § 39-28-01.

Collateral References.

Applicability of motor vehicle registration laws to corporation domiciled in state but having branch trucking bases in other states, 16 A.L.R.2d 1414.

Note.

Section 4 of chapter 309, S.L. 2019 provides, “ APPLICATION. An owner of a semitrailer or farm trailer newly registered after August 1, 2019, shall pay the fees provided in section 3 of this Act. The owner of a currently registered semitrailer or farm trailer on August 1, 2019, shall renew registration and pay the fees provided in section 3 of this Act before January 1, 2020. The owner of a semitrailer or farm trailer currently registered under subsection 2 of section 39-04-12 as of August 1, 2019, shall renew registration and pay the fees provided in section 3 of this Act before January 1, 2020. That owner is entitled to receive a reduction in the fee of previously paid unused registration fees, except for fees paid for the 2019 registration year.”

39-04-19.1. Registration of soil and water conservation vehicles.

Trucks or combinations of trucks and trailers owned and operated by a bona fide resident of this state, but no more than one truck tractor and lowboy trailer unit, of a gross weight of twenty-four thousand one pounds [10886.67 kilograms] or more and used exclusively in soil and water conservation work or exclusively for township road construction work that results in direct benefits to agriculture, shall be furnished license plates upon the payment of one-half the annual fees for such corresponding weight as provided in subdivision b of subsection 2 of section 39-04-19.

This section is not applicable to any trucks and trailers used in road construction work, the contract for which is in excess of three thousand dollars.

Source:

S.L. 1969, ch. 535, § 1.

39-04-19.2. Electric and plug-in hybrid vehicle road use fee — Definitions.

  1. In addition to all other fees required under this chapter for registration of a motor vehicle, the department shall collect at the beginning of each annual registration period:
    1. An electric vehicle road use fee of one hundred twenty dollars for each electric vehicle registered.
    2. A plug-in hybrid vehicle road use fee of fifty dollars for each plug-in hybrid vehicle registered.
    3. An electric motorcycle road use fee of twenty dollars for each electric motorcycle registered.
  2. As used in this section:
    1. “Electric motorcycle” means a motor vehicle that has a seat or saddle for the use of the rider, is designed to travel on not more than three wheels in contact with the ground, and is propelled by an electric motor powered by a battery or other electric device incorporated into the vehicle and not propelled by an engine powered by the combustion of a hydrocarbon fuel, including gasoline, diesel, propane, or liquid natural gas.
    2. “Electric vehicle” means a vehicle propelled by an electric motor powered by a battery or other electric device incorporated into the vehicle and not propelled by an engine powered by the combustion of a hydrocarbon fuel, including gasoline, diesel, propane, or liquid natural gas.
    3. “Plug-in hybrid vehicle” means a vehicle drawing propulsion energy from an internal combustion engine, an energy storage device, and a receptacle to accept grid electricity.
  3. The department shall deposit any moneys collected under this section into the highway tax distribution fund.

Source:

S.L. 2019, ch. 311, § 1, effective July 1, 2019.

39-04-20. Additional fees required of trucks. [Repealed]

Repealed by S.L. 1995, ch. 450, § 1.

39-04-21. Fees for motor vehicles first registered in state.

When a motor vehicle first becomes subject to registration during the calendar year, the registration fee must be for the remainder of the year prorated on a monthly basis, one-twelfth of the annual registration fee for each calendar month or fraction thereof. Penny adjustments must be carried to the next even dollar. Temporary registrations must be issued in such manner as is prescribed by the director of the department of transportation.

Source:

S.L. 1927, ch. 179, § 25, subs. a; 1931, ch. 186, § 5, subs. a; 1941, ch. 194, § 2, subs. b3; R.C. 1943, § 39-0440; S.L. 1953, ch. 238, § 1; 1957 Supp., § 39-0440; S.L. 1959, ch. 289, § 15; 1971, ch. 357, § 3.

39-04-21.1. Trailers, semitrailers, farm trailers — Registration fees prorated — Excess weight registration. [Repealed]

Repealed by S.L. 1983, ch. 427, § 3.

39-04-22. Motor vehicle exceeding registered gross weight for which licensed not to be operated on highway — Exception.

Except as otherwise provided by law, a motor vehicle, or a combination of motor vehicles, may not be operated upon the highways of this state when the gross weight exceeds the registered gross weight for which the vehicle or combination of vehicles was licensed. Any person violating the provisions of this section will be required to license such motor vehicle at the higher legal rate in accordance with the weight carried by the motor vehicle at the time of the violation for the entire license period. However, such registration may not be construed to authorize the movement of loads in violation of chapter 39-12.

Source:

S.L. 1927, ch. 179, § 25, subs. b; 1931, ch. 186, § 5, subs. b; 1933, ch. 161, § 1, subs. b; 1941, ch. 194, § 2, subs. b5; R.C. 1943, § 39-0442; S.L. 1959, ch. 289, § 15; 1961, ch. 256, § 1; 2009, ch. 322, § 9.

39-04-23. Registered motor vehicle transporting property may change registration to higher or lower registered gross weight.

Any owner of a motor vehicle transporting property who has licensed the vehicle for any gross weight limitations may change the registration to a higher registered gross weight limitation by the payment of the difference between the fee required for the new registration and the fee paid for the registration under which the vehicle is being operated. The fee must equal one-twelfth of the annual higher registration fee less one-twelfth of the registration fee already paid, the difference multiplied by the number of whole and partial calendar months remaining in the registration period. In no event may the fee be less than five dollars.

Source:

S.L. 1927, ch. 179, § 25, subs. b; 1931, ch. 186, § 5, subs. b; 1933, ch. 161, § 1, subs. b; 1941, ch. 194, § 2, subs. b8; R.C. 1943, § 39-0444; S.L. 1951, ch. 244, § 2; 1957 Supp., § 39-0444; S.L. 1959, ch. 289, § 15; 1963, ch. 272, § 1; 1979, ch. 413, § 2; 1983, ch. 423, § 2; 2009, ch. 322, § 10.

39-04-24. Director to determine weight of motor vehicle when manufacturer’s weight unknown.

Any motor vehicle not having an advertised manufacturer’s weight shall pay a license fee based upon the actual weight as determined by the director from satisfactory proofs submitted to the director. Any truck not having a manufacturer’s advertised load capacity shall pay a license fee in accordance with the schedules provided in this chapter and applicable thereto upon its load capacity as determined by the director upon satisfactory proofs submitted to the director.

Source:

S.L. 1927, ch. 179, § 25, subs. c; 1931, ch. 186, § 5, subs. c; 1933, ch. 160, § 8; 1935, ch. 180, § 1; R.C. 1943, § 39-0450; S.L. 1959, ch. 289, § 15; 1983, ch. 422, § 3.

39-04-25. When seasonal registration of passenger buses permitted. [Repealed]

Repealed by S.L. 1983, ch. 423, § 2.

39-04-26. Registration of vehicles transporting property — Based on registered gross weight — Minimum gross weight — Exemption.

The registration and license fee for a motor vehicle or for any lawful combination of motor vehicles used for the transportation of property must be based upon the registered gross weight of the motor vehicle or combination of vehicles. The minimum gross weight for which the motor vehicle or combination of motor vehicles can be licensed is double the unloaded weight of the motor vehicle or combination of vehicles and, subject to the minimum, the owner of any motor vehicle or combination of vehicles in the application for license shall set out the gross weight for which the owner desires a license. The gross weight of any trailer, semitrailer, or farm trailer may not be included in the minimum gross weight for which a vehicle must be licensed when the vehicle or combination of vehicles is not for hire and when the gross weight of the trailer, semitrailer, or farm trailer being towed does not exceed twenty-four thousand pounds [10886.22 kilograms].

Source:

S.L. 1927, ch. 179, § 25, subs. b; 1931, ch. 186, § 5, subs. b; 1933, ch. 161, § 1, subs. b; 1941, ch. 194, § 2, subs. b4; R.C. 1943, § 39-0454; S.L. 1959, ch. 289, § 15; 1961, ch. 256, § 2; 1977, ch. 327, § 5; 1979, ch. 409, § 5; 2009, ch. 322, § 11.

39-04-27. Manufacturer or dealer to give notice of sale or transfer. [Repealed]

Repealed by S.L. 1975, ch. 328, § 1.

39-04-28. Motor vehicle and motorcycle dealers licenses — Fees — Additional number plates. [Repealed]

Repealed by S.L. 1963, ch. 285, § 14.

Note.

For present provisions relating to motor vehicle dealer licensing, see chs. 39-22, 39-22.1 and 39-22.3

39-04-29. Certificate of title to be delivered. [Repealed]

Repealed by S.L. 1981, ch. 378, § 38.

39-04-30. Cancellation of licenses. [Repealed]

Repealed by S.L. 1963, ch. 285, § 14.

39-04-31. Bond required. [Repealed]

Repealed by S.L. 1963, ch. 285, § 14.

39-04-31.1. Imposing fees in lieu of truck-mile tax. [Repealed]

Repealed by omission from S.L. 1959, ch. 289, § 15.

39-04-32. Used car lots — Location. [Repealed]

Repealed by S.L. 1963, ch. 285, § 14.

39-04-33. Dealer permitting license to be used by another dealer — License revoked — Penalty. [Repealed]

Repealed by S.L. 1963, ch. 285, § 14.

39-04-34. Dealers to furnish information to registrar. [Repealed]

Repealed by S.L. 1963, ch. 285, § 14.

39-04-34.1. Transfer of certain powers to public service commission. [Repealed]

Repealed by S.L. 1953, ch. 237, § 7.

39-04-35. Dealer to file list of used cars with registrar — Fees paid on used cars by dealer. [Repealed]

Repealed by S.L. 1963, ch. 285, § 14.

39-04-36. Transfer of registered vehicle — Removal of number plates — Transfer of number plates.

  1. Whenever the ownership of a vehicle registered under the provisions of this chapter, chapter 39-18, or chapter 39-29.2 is transferred or assigned, the registration of the vehicle expires and the transferor shall remove the number plates.
  2. Upon applying for the transfer of the registration and paying a five dollar fee, a person who transfers or assigns to another person the ownership of a registered vehicle may receive credit for the unused portion of the fees paid for the transferred vehicle. The transferor must use a number plate previously removed pursuant to subsection 1, regardless of whether there is any license fee credit remaining. If the number plate has become lost, stolen, or mutilated, the transferor may apply for duplicate plates. The department may establish procedures that permit the transferor to assign the credit to the transferee if the transferor is the spouse, a sibling, or a lineal ancestor or descendant of the transferee. Any remaining credit on a vehicle owned by a leasing company must be credited to the lessee. One-twelfth of the annual fee must be credited for each month of the registration period remaining after the month in which the transfer is made. The credit may not extend beyond the original expiration of the registration. Except as provided in section 39-04-44, the credit must be applied to the registration fees for a replacement vehicle. The transferor shall apply for the transfer of registration within thirty days of the purchase of the replacement vehicle.
  3. Except as otherwise permitted in this chapter, before the transferee of a registered vehicle may operate the vehicle on a highway, the transferee must apply for and obtain a new registration of the vehicle, as on an original registration. To provide the transferee adequate time to obtain a new registration, the director may provide for the issuance of a temporary registration certificate to permit the transferee to operate the vehicle for thirty days after the date of acquisition. The certificate must be printed on the reverse side of each vehicle registration card and must be available to the transferee from licensed vehicle dealers, law enforcement agencies, and motor vehicle branch offices. The vehicle may be operated for five days from date of purchase without a plate or certificate of ownership if dated evidence of ownership is carried in the vehicle. The evidence of ownership must be in a form as prescribed by the department.

Source:

S.L. 1927, ch. 179, § 16, subs. a; R.C. 1943, § 39-0463; S.L. 1959, ch. 289, § 15; 1963, ch. 273, § 1; 1965, ch. 272, § 1; 1967, ch. 302, § 1; 1977, ch. 338, § 1; 1981, ch. 378, § 18; 1989, ch. 453, § 2; 1991, ch. 405, § 1; 1995, ch. 367, § 2; 1999, ch. 330, § 3; 2001, ch. 331, § 3; 2001, ch. 336, § 1; 2015, ch. 276, § 4, effective April 20, 2015.

Effective Date.

The 2015 amendment of this section by section 4 of chapter 276, S.L. 2015 became effective April 20, 2015, pursuant to an emergency clause in section 12 of chapter 276, S.L. 2015.

39-04-37. Violations of registration provisions.

It is unlawful for any person to commit any of the following acts:

  1. To operate, or for the owner thereof knowingly to permit anyone to operate, upon a highway any vehicle the registration of which has been canceled or revoked, or for which the registration fees required in this title have not been paid, or which does not have attached thereto and displayed thereon a number plate, plates, or validation tabs assigned thereto by the director for the current registration period, subject to the exemptions allowed in this title.
  2. To display or cause or permit to be displayed, or to have in possession, any registration card, registration number plate, or validation tabs knowing the same to be fictitious or to have been canceled, revoked, suspended, or altered.
  3. To lend any registration number plate, registration card, or validation tabs to any person not entitled thereto, or knowingly permit the use of any registration number plate or registration card by any person not entitled thereto.
  4. To fail or refuse to surrender to the department, upon demand, any registration card, registration number plate, or validation tab which has been suspended, canceled, or revoked as is provided in this chapter.
  5. To use a false or fictitious name or address in any application for the registration of any vehicle, or for any renewal or duplicate thereof, or knowingly to make a false statement or knowingly to conceal a material fact or otherwise to commit a fraud in any application.
  6. To operate, or for the owner thereof knowingly to permit anyone to operate a motor vehicle on a highway if the owner is employed in this state on a temporary or full-time basis, is a resident of the state, and does not have a temporary registration permit when required under subsection 1 of section 39-04-18.2. As used in this subsection, the term “resident” means a resident as defined under subdivision e of subsection 2 of section 39-04-18.

Source:

S.L. 1927, ch. 179, § 24; 1933, ch. 160, § 7; R.C. 1943, § 39-0465; S.L. 1959, ch. 289, § 15; 1981, ch. 378, § 19; 1983, ch. 416, § 4; 1985, ch. 425, § 1; 1989, ch. 456, § 1; 2021, ch. 283, § 1, effective August 1, 2021.

Collateral References.

Validity and construction of statute making it a criminal offense for the operator of a motor vehicle not to carry or display his operator’s license or the vehicle registration certificate, 6 A.L.R.3d 506.

Validity and construction of statute making it a criminal offense to tamper with motor vehicle or contents, or to obscure registration plates, 57 A.L.R.3d 606.

39-04-38. Taxes or fees provided for to be in lieu of other state or local personal property taxes.

The taxes or fees provided for in this chapter are in lieu of all other personal property taxes, either state or local, upon such motor vehicles and upon any trailer or semitrailer for which a certificate of title is required to be issued and has been issued pursuant to the provisions of chapter 39-05.

Source:

S.L. 1927, ch. 179, § 25, subs. h; 1931, ch. 186, § 5, subs. h; R.C. 1943, § 39-0466; S.L. 1959, ch. 289, § 15; 1963, ch. 405, § 5.

39-04-39. Distribution of registration fees collected.

Any moneys in the registration fund accruing from license fees or from other like sources, in excess of the amount required to pay salaries and other necessary expenses, in accordance with the legislative assembly’s appropriation for such purposes, must be promptly deposited in the highway tax distribution fund which must be distributed in the manner as prescribed by law. The state treasurer shall transfer annually from the highway tax distribution fund to the ethanol production incentive fund an amount equal to forty percent of all sums collected for the registration of farm vehicles under subsection 5 of section 39-04-19 except that no transfer may be made in an amount that would result in the balance of the ethanol production incentive fund exceeding seven million five hundred thousand dollars.

Source:

S.L. 1927, ch. 179, § 30; 1933, ch. 160, § 11; 1935, ch. 177, § 1; R.C. 1943, § 39-0467; S.L. 1955, ch. 244, § 5; 1957, ch. 259, § 1; 1957 Supp., § 39-0467; S.L. 1959, ch. 289, § 15; 1961, ch. 255, § 2; 1963, ch. 274, § 1; 1967, ch. 304, § 2; 1993, ch. 380, § 1; 2003, ch. 57, § 6; 2007, ch. 496, § 6.

Cross-References.

Highway tax distribution fund, see § 54-27-19.

Notes to Decisions

Error in Distribution.

Where error made in distribution of moneys to counties resulted in some counties receiving too large a share and others too small a share but where state retained no part of the moneys, no action against state arose in favor of county which received less than it was entitled to. Stark County v. State, 160 N.W.2d 101, 1968 N.D. LEXIS 100 (N.D. 1968).

Where some counties through a mistake received excess distribution of fees while others received too small a portion, those counties which received less than they were entitled to could proceed to recover moneys due them from counties which had received excess under theory of unjust enrichment. Richland County v. State, 180 N.W.2d 649, 1970 N.D. LEXIS 136 (N.D. 1970).

DECISIONS UNDER PRIOR LAW

Basis of Distribution.

Under 1957 version of this section, distribution among counties should have been on basis of number of vehicles registered rather than on basis of total fees received from each county. Richland County v. State, 180 N.W.2d 649, 1970 N.D. LEXIS 136 (N.D. 1970).

39-04-39.1. Distribution to local highway funds. [Repealed]

Repealed by S.L. 1967, ch. 304, § 8.

39-04-39.2. Refunds of registration fees.

No refunds of registration fees may be made, except when the vehicle has been improperly registered or when the vehicle has been destroyed.

Source:

S.L. 1979, ch. 28, § 4; 1995, ch. 367, § 3.

39-04-39.3. Motor vehicle registration fee collection agreements with home rule cities.

The governing body of any incorporated city that has adopted the home rule provisions of chapter 40-05.1 and the department may enter into contractual agreements under which the department may collect any motor vehicle registration fees assessed by the city. Agreements entered into under this section must provide for an agreed-upon amount to be allowed the department for services rendered in connection with the collections. Any agreed-upon amount collected must be deposited in the motor vehicle registration fund. The department shall deposit with the state treasurer all money collected under this section and shall accompany each remittance with a certificate showing the city for which it was collected. The state treasurer, quarterly, shall pay to the city auditors of the several cities the money to which they are entitled under this section.

Source:

S.L. 1983, ch. 428, § 1; 2009, ch. 326, § 2.

39-04-39.4. Refund of registration fees.

Any owner of a motor vehicle, if such motor vehicle is returned to the manufacturer under the provisions of chapter 51-07, may claim a refund in the amount equal to the unused portion of the fee upon the vehicle, computed pro rata by the month, one-twelfth of the annual fee paid for each month of the registration period remaining after the month in which the vehicle was returned, provided the number plates and validation tabs issued for the vehicle are returned to the department.

Source:

S.L. 1985, ch. 424, § 1.

39-04-39.5. Allocation of portion of registration fee. [Repealed]

Repealed by S.L. 2005, ch. 40, § 15.

39-04-40. Officers to enforce the provisions of chapter.

The highway patrol and all other road or police officers shall enforce the provisions of this chapter.

Source:

S.L. 1927, ch. 179, § 35; R.C. 1943, § 39-0468; S.L. 1959, ch. 289, § 15; 1983, ch. 418, § 4.

39-04-41. Penalty for violation of provisions of chapter.

Any person violating any of the provisions of this chapter for which another penalty is not specifically provided is guilty of a class B misdemeanor.

Source:

S.L. 1927, ch. 179, § 37, subss. a, b; 1931, ch. 186, § 8, subss. a, b; 1933, ch. 162, § 6; R.C. 1943, § 39-0469; S.L. 1959, ch. 289, § 15; 1975, ch. 106, § 423.

39-04-42. Construction contract truck registration — Penalty. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

39-04-43. Antique automobile — License and fee. [Repealed]

Repealed by S.L. 1981, ch. 378, § 38.

39-04-44. Credits on destroyed vehicle.

  1. Any owner of a motor vehicle licensed in this state, if such vehicle is permanently and involuntarily destroyed, may during the same year or following year claim a refund in an amount equal to the unused portion of the fee paid, less five dollars, upon the vehicle so destroyed, computed pro rata by the month, one-twelfth of the annual fee paid for each month of the year remaining after the month in which such vehicle was so destroyed, provided the number plates, registration card, and certificate of title are returned to the department. If the number plates or registration card assigned to the vehicle are destroyed, a refund may be obtained upon furnishing information of such fact satisfactory to the department. Upon receiving the certificate of title, the department shall issue a salvage certificate of title.
  2. If a vehicle is withdrawn from a proportionally registered fleet during the period for which it is registered, the registrant of the fleet shall notify the department. The department may require surrender of cab cards and other identification devices with respect to the vehicle. If a vehicle is permanently withdrawn from a proportionally registered fleet because it has been destroyed, sold, or otherwise completely removed from the service of the fleet operator, the unused portion of the fees paid with respect to the vehicle must be applied against liability of the fleet operator for subsequent additions to the fleet during the registration year or for additional fees upon audit. If at the end of the registration year there remains an unused portion of fees paid with respect to the permanently withdrawn vehicles, the unused fees must be applied against registration fees for the registration year immediately following the year during which the vehicles were permanently withdrawn. The used portion of fees of a vehicle permanently withdrawn from a fleet is a sum equal to the amount paid with respect to the vehicle when it was first proportionally registered in the registration year, reduced by one-twelfth of the total annual proportional registration fee applicable to the vehicle for each calendar month of the registration year including the month the notice of withdrawal is received by the department, except that no unused portion of fees of less than five dollars may be considered or applied. If an unused portion of fees cannot be applied against registration fees for the registration year immediately following, an application for refund of the unused portion may be made to the department, which shall adopt rules as may be required for payment of the refund.

Source:

S.L. 1955, ch. 245, § 1; R.C. 1943, 1957 Supp., § 39-0472; S.L. 1959, ch. 289, § 15; 1967, ch. 303, § 1; 1971, ch. 362, § 1; 1981, ch. 378, § 20; 1995, ch. 367, § 4; 1995, ch. 369, § 1.

39-04-44.1. Transporter’s license and registration card.

A vehicle otherwise properly registered may be used for transporting other vehicles not registered provided that the transported vehicle has displayed a transporter’s license plate and the transporting vehicle carries a transporter’s registration card. The fee for the transporter’s license plate and registration card is sixty-five dollars per year.

Source:

S.L. 1963, ch. 265, § 6; 1987, ch. 454, § 1.

39-04-45. Driveaway transporter registration. [Repealed]

Repealed by S.L. 1963, ch. 265, § 7.

39-04-46. Driveaway transporter registration — Expiration. [Repealed]

Repealed by S.L. 1963, ch. 265, § 7.

39-04-47. Driveaway transporter registration — Display. [Repealed]

Repealed by S.L. 1963, ch. 265, § 7.

39-04-48. Driveaway transporter registration — Application. [Repealed]

Repealed by S.L. 1963, ch. 265, § 7.

39-04-49. Driveaway transporter registration — Fee. [Repealed]

Repealed by S.L. 1963, ch. 265, § 7.

39-04-50. Motor vehicle department powers. [Repealed]

Repealed by S.L. 1963, ch. 265, § 7.

39-04-51. Penalties. [Repealed]

Repealed by S.L. 1963, ch. 265, § 7.

39-04-52. Driveaway transport license fees — Effect. [Repealed]

Repealed by S.L. 1963, ch. 265, § 7.

39-04-53. Noncompliance — Effect. [Repealed]

Repealed by S.L. 1963, ch. 265, § 7.

39-04-54. Registration card — Issuance — Contents — Signing.

Upon registering a vehicle, the department shall issue to the owner a registration card which must set forth all of the following:

  1. The date issued.
  2. The registration number assigned to the vehicle.
  3. A description of the registered vehicle, including either serial or identification number.
  4. A space for the signature of the owner.
  5. The name of the owner.
  6. Other statements of fact as may be determined necessary by the department.

Source:

S.L. 1973, ch. 295, § 1; 1981, ch. 378, § 21.

39-04-55. Registration card to be carried in or on vehicle — Inspection of card — Penalty.

The registration card issued for a vehicle must be carried in the driver’s compartment of the vehicle or, in the case of a housetrailer or mobile home or a trailer or semitrailer, regardless of when such vehicle was acquired, inside or on the vehicle, at all times while the vehicle is being operated upon a highway in this state. The card is subject to inspection by any peace officer or highway patrol officer. Any person violating this section must be assessed a fee of twenty dollars. However, a person cited for violation of this section may not be found to have committed the violation if the person, within fourteen days after being cited produces and displays to the office of the prosecutor where the matter is pending, a registration card valid at the time the person was cited. A peace officer or highway patrol officer, upon citing a person for violating this section, shall inform the person that a violation will be considered as not having occurred if the person produces and displays a valid registration card in the manner provided in this section.

Source:

S.L. 1973, ch. 295, § 1; 1973, ch. 301, § 17, amending former N.D.C.C. § 39-05-12; S.L. 1991, ch. 406, § 1; 2021, ch. 283, § 2, effective August 1, 2021.

Note.

Section 39-04-55 was created by section 1 of chapter 295, 1973 S.L. and section 2 of the same chapter 295 repealed section 39-05-12, which contained the provisions which comprised new section 39-04-55. The effect of the repeal and enactment was to remove the law from the chapter on title registration and to place it in the chapter on motor vehicle registration. Section 39-05-12 was amended by section 17 of chapter 301, 1973 S.L. and, since the identical provisions which were in section 39-05-12 were transferred to section 39-04-55, the amendment in chapter 301 has been harmonized with the latter section in order to give effect to both actions of the Legislative Assembly pursuant to section 1-02-09.1.

Notes to Decisions

Search for Registration Card.

This section does not authorize the police to make warrantless vehicle searches generally or on mere suspicion in absence of any indication of the violation of a law or ordinance under the pretext of searching for the vehicle registration card, and cannot be used as a subterfuge for obtaining information not related to the licensing requirement. State v. Stockert, 245 N.W.2d 266, 1976 N.D. LEXIS 133 (N.D. 1976).

Collateral References.

Validity and construction of statute making it a criminal offense for the operator of a motor vehicle not to carry or display his operator’s license or the vehicle registration certificate, 6 A.L.R.3d 506.

39-04-56. Altering or forging registration card — Penalty.

It is a class C felony for any person to:

  1. Alter with fraudulent intent any registration card issued by the department;
  2. Forge or counterfeit any registration card purporting to have been issued by the department under the provisions of this chapter;
  3. Alter or falsify with fraudulent intent or forge any assignment of a registration card; or
  4. Use any registration card, or assignment, knowing the same to have been altered, forged, or falsified.

Source:

S.L. 1981, ch. 378, § 6.

CHAPTER 39-04.1 Additional Fee for Transportation of Property [Repealed]

[Repealed by S.L. 1977, ch. 339, § 1; S.L. 1983, ch. 423, § 2]

CHAPTER 39-04.2 Public Transportation

39-04.2-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Public transportation” means the vehicular transportation of persons from place to place within this state, but does not include the provision of transportation facilities otherwise provided by public funds, such as roads, streets, highways, bridges, lighting equipment, or signs.
  2. “Ridership” means a one-way trip provided to any one person in a motorized vehicle designed to carry eight or more persons in an enclosed area with separate seating for each person.
  3. “Transportation provider” means a political subdivision, tribal agency, or any nonprofit corporation that provides transportation to the public, especially to elderly and handicapped citizens.

Source:

S.L. 1989, ch. 457, § 1; 2013, ch. 430, § 1.

39-04.2-02. Public transportation fund — Administration of the fund.

The director shall administer the public transportation fund. Payments disbursed under this chapter must be paid from moneys deposited in the fund. The expenses arising from administration of the fund must be paid from the fund within the limits of legislative appropriations.

Source:

S.L. 1989, ch. 457, § 1.

39-04.2-03. Additional registration fee — Deposit in fund. [Repealed]

Repealed by S.L. 2009, ch. 40, § 26.

39-04.2-04. Distribution of funds — Continuing appropriation.

  1. Moneys in the public transportation fund must be disbursed under guidelines issued by the director. The funds must be used by transportation providers to establish and maintain public transportation, especially for the elderly and handicapped, and may be used to contract to provide public transportation, as matching funds to procure money from other sources for public transportation and for other expenditures authorized by the director. Moneys in the public transportation fund are appropriated to the department of transportation on a continuing basis for distributions authorized under this section.
  2. Each county shall receive a base amount of four-tenths of one percent of the appropriation for the program plus one dollar and fifty cents per capita of population in the county, based upon the latest regular or special official federal census. Each year the director shall increase or decrease the one dollar and fifty cents per capita amount in order to distribute all funds appropriated for the biennium. If there are multiple transportation providers in one county, then the base amount must be divided equally among the providers and the additional per capita amount must be based upon the percentage of elderly and handicapped ridership provided by each transportation provider within the county. Funds not expended by a county during a contract period, or previous contract periods, may be redistributed under guidelines established by the director. In addition, unexpended funds may also be used by the director for transit coordination purposes.

Source:

S.L. 1989, ch. 457, § 1; 1995, ch. 35, § 17; 1999, ch. 337, § 2; 2005, ch. 326, § 2; 2007, ch. 12, § 10; 2013, ch. 286, § 1; 2013, ch. 287, § 1.

CHAPTER 39-05 Title Registration

39-05-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires, “motor vehicle” includes a housetrailer or mobile home and a semitrailer designed to be towed by a truck tractor and “manufactured home” means a manufactured home as defined in section 41-09-02.

Source:

S.L. 1927, ch. 180, § 1; 1931, ch. 187, § 1; R.C. 1943, § 39-0501; S.L. 1959, ch. 289, § 3; 1961, ch. 253, § 4; 1963, ch. 405, § 6; 1973, ch. 291, § 3; 1981, ch. 378, § 30; 2009, ch. 327, § 3.

Collateral References.

Purchaser’s title as affected by failure to comply with statute upon sale of automobile, 58 A.L.R.2d 1351.

Motor vehicle certificate of title or similar document as, in hands of one other than legal owner, indicia of ownership justifying reliance by subsequent purchaser or mortgagee without actual notice of other interests, 18 A.L.R.2d 813.

Failure of seller to comply with title transfer laws as affecting rights of assignee of mortgage or conditional sales contract, 58 A.L.R.2d 1351.

39-05-02. Vehicles exempt from provisions of chapter. [Repealed]

Repealed by S.L. 1975, ch. 328, § 1.

39-05-02.1. Certificate of title required.

Except as otherwise provided in this chapter, every owner of a vehicle which is in this state and for which no certificate of title has been issued shall make application to the department for a certificate of title to the vehicle.

Source:

S.L. 1981, ch. 378, § 22.

39-05-02.2. Exclusions from the certificate of title requirement.

A certificate of title need not be obtained for:

  1. A vehicle owned by the United States unless it is registered in this state.
  2. A vehicle owned by a manufacturer or dealer and held for sale, even if incidentally moved on the highway or used for purposes of testing or demonstration, or a vehicle used by a manufacturer solely for testing.
  3. A vehicle owned by a nonresident of this state and not required by law to be registered in this state.
  4. A vehicle regularly engaged in interstate transportation of persons or property which is registered in accordance with the international registration plan and for which a currently effective certificate of title has been issued in another state that has a reciprocal excise tax agreement with this state.
  5. A vehicle moved solely by human or animal power.
  6. Implements of husbandry.
  7. Special mobile equipment.
  8. A self-propelled wheelchair or tricycle for a mobility-impaired individual.
  9. Any vehicle which is driven or moved upon a highway only for the purpose of crossing the highway from one property to another. The vehicle shall cross the highway at an angle of approximately ninety degrees to the direction of the highway.
  10. Other vehicles not required to be registered in this state or not required to display distinctive plates.
  11. A manufactured home with respect to which the requirements of subsections 1 through 3 of section 39-05-35, as applicable, have been satisfied.
  12. An electric bicycle.

Source:

S.L. 1981, ch. 378, § 23; 2009, ch. 327, § 4; 2011, ch. 269, § 1; 2013, ch. 288, § 1; 2021, ch. 278, § 2, effective August 1, 2021.

39-05-03. Department not to license vehicle until application is made for a certificate of title.

The department may not register or renew the registration for license of any vehicle unless an application is made for an official certificate of title for the vehicle, satisfactory evidence is presented that a certificate of title for the vehicle has been issued previously to the lienholder or owner by the department, or the vehicle is regularly engaged in interstate commerce of persons or property, is registered in accordance with the international registration plan, and has a currently effective certificate of title that has been issued in another state that has a reciprocal excise tax agreement with this state.

Source:

S.L. 1927, ch. 180, § 3, subs. a; 1931, ch. 187, § 2, subs. a; R.C. 1943, § 39-0503; S.L. 1979, ch. 415, § 1; 2011, ch. 269, § 2; 2013, ch. 288, § 2.

Notes to Decisions

Effect of Violation.

An automobile owner’s violation of a statute respecting registration, certification, and transfer of title does not prevent him from establishing ownership in a suit on a theft policy. Green v. Connecticut Fire Ins. Co., 61 N.D. 376, 237 N.W. 794, 1931 N.D. LEXIS 286 (N.D. 1931).

39-05-04. Certificate of title required before vehicle can be operated on highway — Penalty. [Repealed]

Repealed by S.L. 1959, ch. 289, § 16.

39-05-05. Application for certificate of title — Contents — Fee.

  1. An application for a certificate of title must be made upon a form provided by the department and must contain all of the following:
    1. A full description of the vehicle, including the name of the manufacturer, either the engine, serial, or identification number, and any other distinguishing marks. The department may assign a vehicle identification number for a vehicle not otherwise assigned a number. The assigned number must be permanently affixed to the vehicle and the department may require the vehicle be inspected before issuing a certificate of title for the vehicle.
    2. A statement as to whether the vehicle is new or used.
    3. A statement of the applicant’s title and the name and address of each lienholder in the order of priority.
    4. The name and address of the person to whom the certificate of title must be delivered.
    5. If applicable, a statement as to whether the vehicle is a specially constructed, reconstructed, or foreign vehicle.
    6. The owner’s legal name, as evidenced by a valid state-issued driver’s license, identity card, or any other documentary evidence that confirms to the satisfaction of the director the true identity of the owner, street address, city, and county, or township and county, of residence. When two or more owners are designated, at least one of the owners must comply with the identification requirement of this subdivision and all names used must be legal names. A dealer shall make specific inquiry as to this information before filling in the information on the application.
    7. The department may require odometer disclosure information as required under the Truth in Mileage Act of 1986 [Pub. L. 99-579].
    8. Any other information required by the department.
  2. The owner of every vehicle that has been registered outside this state shall surrender to the department the certificate of title and registration card or other evidence that may satisfy the department the applicant is the lawful owner or possessor of the vehicle.
  3. If the vehicle for which certificate of title is sought is a new vehicle, a certificate of title may not be issued unless a certificate of origin executed by the manufacturer of the vehicle is attached to the application for registration or is attached to the application for the certificate of title for the vehicle. If the new vehicle for which certificate of title is sought is of foreign manufacture, the certificate of origin must be furnished by the importer of the vehicle. The manufacturer or importer of all new vehicles shall designate the total shipping weight of the vehicle on the certificate of origin.
  4. When a new vehicle is purchased from a dealer, the application for the certificate of title must include a statement of the transfer by the dealer.
  5. Each application must be accompanied by a fee of five dollars, which is in addition to any fee charged for the registration of the vehicle.

Source:

S.L. 1927, ch. 180, § 4, subs. a; 1931, ch. 187, § 3, subs. a; R.C. 1943, § 39-0505; S.L. 1959, ch. 289, § 4; 1975, ch. 332, § 1; 1981, ch. 378, § 31; 1983, ch. 421, § 2; 1989, ch. 458, § 1; 2001, ch. 329, § 3; S.L. 2005, ch. 327, § 1; 2009, ch. 320, § 2.

Notes to Decisions

Security Interests Governed by U.C.C.

Security interests in a dealer’s automobile inventory are governed by the U.C.C. rather than by title registration statutes. Bank of Beulah v. Chase, 231 N.W.2d 738, 1975 N.D. LEXIS 182 (N.D. 1975).

39-05-06. Application to be verified — When officers and employees of department may verify. [Repealed]

Repealed by S.L. 1977, ch. 340, § 1.

39-05-07. False statement in application or other document — Penalty. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

39-05-08. Application to be checked against certain indexes.

The department shall maintain a vehicle identification number index of registered motor vehicles and upon receiving an application for a certificate of title it shall check first the vehicle identification number shown in the application against such index.

Source:

S.L. 1927, ch. 180, § 5; 1931, ch. 187, § 4; R.C. 1943, § 39-0508; S.L. 1971, ch. 365, § 1.

39-05-09. Issuance, contents, delivery, and term of certificate.

  1. After checking the application for a certificate as provided in section 39-05-08 and except as provided in subsection 4, the department, if it is satisfied that the applicant is the person entitled to the possession of the vehicle, shall issue a certificate of title which must contain:
    1. The name of the owner.
    2. The vehicle identification number.
    3. The signature of the director.
    4. The date issued.
    5. A description of the vehicle as determined by the department.
    6. A statement of the owner’s title and of all liens or encumbrances upon the vehicle therein described and whether possession is held by the owner or lienholder.
  2. Upon the reverse side of such certificate must be contained forms for the assignment of title or interest and warranty thereof by the owner with a space for the notation of liens and encumbrances upon such vehicle at the time of a transfer.
  3. The amount of any lien or encumbrance upon the vehicle need not be shown anywhere on the certificate of title, only the fact of such lien or encumbrance, and the identity of the lienholder or encumbrancer. The department shall deliver the certificate of title to the owner or first lienholder. The certificate is good for the life of the vehicle as long as the vehicle is owned or held by the original holder of the certificate.
  4. The department may not issue a certificate of title for a manufactured home with respect to which there has been recorded an affidavit of affixation under section 47-10-27.
  5. The holder of a manufacturer’s certificate of origin to a manufactured home may deliver it to a person to facilitate conveying or encumbering the manufactured home. A person receiving a manufacturer’s certificate of origin so delivered holds the certificate in trust for the person delivering the certificate.
  6. Notwithstanding any other provision of law, a certificate of title issued by the department for a manufactured home is prima facie evidence of the facts appearing on the certificate, notwithstanding that the manufactured home, at any time, becomes affixed in any manner to real property.

Source:

S.L. 1927, ch. 180, § 4, subs. a; 1931, ch. 187, § 3, subs. a; R.C. 1943, § 39-0505; S.L. 1959, ch. 289, § 4; 1975, ch. 332, § 1; 1981, ch. 378, § 31; 1983, ch. 421, § 2; 1991, ch. 407, § 1; 2009, ch. 327, § 5.

39-05-09.1. Lost, stolen, or mutilated certificate of title.

If a certificate of title is lost, stolen, mutilated, destroyed, or becomes illegible, the first lienholder or, if none, the owner or legal representative of the owner named in the certificate, as shown by the records of the department, shall promptly make application for and may obtain a duplicate upon furnishing information satisfactory to the department, and upon the payment of five dollars. The department may issue a duplicate title at no cost to the first lienholder or, if none, the owner named in the certificate, when satisfied the first lienholder or owner did not receive the original title which was issued. The duplicate certificate of title must contain the legend “This is a duplicate certificate and may be subject to the rights of a person under the original certificate”. It must be mailed to the first lienholder named in it or, if none, to the owner.

A person recovering an original certificate of title for which a duplicate has been issued shall promptly surrender the original certificate to the department.

Source:

S.L. 1971, ch. 367, § 1; 1975, ch. 332, § 2; 1983, ch. 421, § 3; 1989, ch. 453, § 3.

39-05-09.2. Suspension or revocation of certificates of title.

  1. The department shall suspend or revoke a certificate of title, upon notice and reasonable opportunity to be heard in accordance with chapter 28-32, when authorized by any other provision of law or if it finds:
    1. The certificate of title was fraudulently procured or erroneously issued;
    2. The vehicle has been scrapped, dismantled, or destroyed; or
    3. A person has acquired a vehicle but has failed to transfer the ownership as required by this chapter.
  2. For purposes of this section, the following apply:
    1. Suspension or revocation of a certificate of title does not, in itself, affect the validity of a security interest noted on it.
    2. When the department suspends or revokes a certificate of title, the owner or person in possession of it shall immediately upon receiving notice of the suspension or revocation, mail or deliver the certificate to the department.
    3. The department may seize and impound any certificate of title which has been suspended or revoked.
  3. Except as provided in subsection 2 of section 39-05-35, the department may not suspend or revoke a certificate of title to a manufactured home by reason of the fact that at any time the manufactured home becomes affixed in any manner to real property.

Source:

S.L. 1971, ch. 368, § 1; 2003, ch. 311, § 1; 2009, ch. 327, § 6.

Effective Date.

The 2009 amendment of this section by section 6 of chapter 327, S.L. 2009 became effective July 1, 2009.

39-05-10. Registration card — Issuance — Contents — Signing. [Repealed]

Repealed by S.L. 1973, ch. 295, § 2.

Note.

For present provisions, see § 39-04-54.

39-05-11. Altering or forging certificate of title — Penalty.

Any person who shall:

  1. Alter with fraudulent intent any certificate of title issued by the department;
  2. Forge or counterfeit any certificate of title purporting to have been issued by the department under the provisions of this chapter;
  3. Alter or falsify with fraudulent intent or forge any assignment of a certificate of title; or
  4. Use any certificate or assignment, knowing the same to have been altered, forged, or falsified;

is guilty of a class C felony.

Source:

S.L. 1927, ch. 180, § 11; R.C. 1943, § 39-0511; S.L. 1975, ch. 106, § 425; 1981, ch. 378, § 33.

Cross-References.

Punishment for felony, see § 12.1-32-01.

39-05-12. Registration card to be carried in or on vehicle — Inspection of card — Penalty. [Repealed]

Repealed by S.L. 1973, ch. 295, § 2.

Note.

For present provisions, see § 39-04-55.

39-05-13. Duplicate number plate, trailer plate, certificate of registration card issued when, fee. [Repealed]

Repealed by S.L. 1959, ch. 289, § 16.

39-05-14. Special number when engine or serial number is altered, removed, or defaced — Application — Stamping — Record. [Repealed]

Repealed by S.L. 1959, ch. 289, § 16.

39-05-15. Registration card to be endorsed and sent to department upon transfer of vehicle — Penalty. [Repealed]

Repealed by S.L. 1949, ch. 246, § 1.

39-05-16. Legal owner of a motor vehicle not to transfer title without certificate — Penalty. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

39-05-16.1. Release of a security interest.

  1. Upon the satisfaction of a security interest in a vehicle for which the certificate of title is in the possession of the lienholder, the lienholder, within ten days after demand and in any event within thirty days of the satisfaction, shall execute a release of the lienholder’s security interest in a manner prescribed by the department. The lienholder shall:
    1. Mail or deliver the certificate of title and release to the next lienholder named on the certificate of title, who, within thirty days of receipt, shall mail or deliver the certificate of title, release, and a fee of five dollars to the department. The department shall issue and mail or deliver a new certificate of title to the first lienholder named on the new certificate of title.
    2. If there are no other lienholders named on the certificate of title, mail or deliver the certificate of title and release to the owner or the owner’s designee. Within thirty days of receipt, the person receiving the certificate of title and release shall mail or deliver the certificate of title, release, and a fee of five dollars to the department. The department may prescribe further application procedures and, upon determining that there has been a proper compliance with these procedures, shall issue a new certificate of title and mail or deliver it to the owner or the owner’s designee.
  2. Upon the satisfaction of a security interest in a vehicle for which the certificate of title is in the possession of a prior lienholder, the lienholder whose security interest is satisfied shall execute, within ten days after demand and in any event within thirty days of the satisfaction, a release in the form the department prescribes and deliver the release to the owner or the owner’s designee. Upon receipt of a release delivered by the owner to the lienholder in possession of the certificate of title, that lienholder shall mail or deliver the release and the certificate of title to the department. Upon the payment of a five dollar fee, the department shall issue a new certificate.
  3. Notwithstanding this section, a lienholder who uses an electronic lien notification system shall follow the procedure adopted for that system by the department.

Source:

S.L. 1981, ch. 378, § 28; 1983, ch. 421, § 4; S.L. 2005, ch. 327, § 2.

39-05-17. Transfer of title of vehicle — Endorsement required — Certificate of title delivered — New certificate obtained — Penalty.

  1. The owner or transferor of a motor vehicle who transfers title to a vehicle shall endorse an assignment and warranty of title upon the certificate of title for the vehicle. The owner or transferor shall include on the assignment and warranty of title the name of the transferee and the selling price of the vehicle if applicable.
  2. If legal title passes to the transferee, the owner shall deliver the endorsed certificate of title to the transferee within thirty days of the date the vehicle was purchased.
  3. If legal title passes to a lienholder rather than the transferee, the transferee shall endorse a statement that the lienholder holds the lien and shall send the certificate of title to the department with an application for a new certificate of title showing the names of the new owner and lienholder. The certificate of title when issued must be sent by the department to the lienholder or the department may use an electronic lien notification procedure in lieu of sending a certificate of title to a lienholder.
  4. Within thirty days of receiving the title, the transferee shall deliver the endorsed certificate of title to the department with a transfer fee of five dollars, and shall make an application for a new certificate of title. In addition to any other penalty, the registration to a motor vehicle may be suspended or revoked if the transferee fails to present the endorsed certificate of title to the department for transfer and make application for a new certificate of title within thirty days. The department shall deliver the new certificate of title to the lienholder with priority. If there is no lienholder, delivery must be made to the owner.
  5. A violation of this section by an owner, lienholder, or transferee is a class B misdemeanor.

Source:

S.L. 1927, ch. 180, § 6, subss. b, c; 1929, ch. 164, § 1, subss. b, c; 1931, ch. 187, § 6, subss. b, c; R.C. 1943, § 39-0517; S.L. 1949, ch. 247, § 1; 1951, ch. 250, § 1; 1957 Supp., § 39-0517; S.L. 1969, ch. 339, § 2; 1975, ch. 106, § 426; 1977, ch. 341, § 1; 1979, ch. 415, § 2; 1983, ch. 421, § 5; 2001, ch. 337, § 1; 2005, ch. 327, § 3; 2009, ch. 325, § 2; 2019, ch. 313, § 1, effective August 1, 2019; 2021, ch. 283, § 3, effective August 1, 2021.

Cross-References.

Classification of offenses, penalties, see § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Seller Who Finances Sale.

The last sentence of this section makes it clear that a seller who finances the sale of a titled vehicle does not have a duty to convey the title certificate to the purchaser. As first lien holder the seller may retain possession of the certificate. This provision supports the proposition that possession of the certificate alone is sufficient to perfect a security interest under North Dakota law. In re Halvorson, 102 B.R. 736, 1989 Bankr. LEXIS 1230 (Bankr. D.N.D. 1989) (decided under former N.D.C.C. § 39-05-17.1).

39-05-17.1. Certificate of title to be delivered.

Repealed by S.L. 2005, ch. 327, § 5.

39-05-17.2. Body damage disclosure — Rules — When required — Penalty.

  1. The department shall adopt rules relating to the manner and form of disclosing motor vehicle body damage on the certificate of title to a motor vehicle. The rules must provide for a damage disclosure statement from the transferor to the transferee at the time ownership of a motor vehicle is transferred and provide that the department may not transfer the title without the required damage disclosure statement.
  2. Motor vehicle body damage disclosure requirements apply only to the transfer of title on motor vehicles of a model year which have been released in the current calendar year and those motor vehicles of a model year which were released in the seven calendar years before the current calendar year. When a motor vehicle has been subject to this disclosure requirement and a motor vehicle of a model year has not been released in the current calendar year or the seven calendar years before the current calendar year, the holder of the certificate of title with the damage disclosure may have the disclosure removed and a new certificate of title issued for a fee of five dollars.
  3. As used in this section, “motor vehicle body damage” means a change in the body or structure of a motor vehicle, generally resulting from a vehicular crash or accident, including loss by fire, vandalism, weather, or submersion in water, resulting in damage to the motor vehicle which equals or exceeds the greater of ten thousand dollars or twenty-five percent of the predamage retail value of the motor vehicle as determined by the national automobile dealers association official used car guide. The term does not include body or structural modifications, normal wear and tear, glass damage, hail damage, or items of normal maintenance and repair.
  4. A person repairing, replacing parts, or performing body work on a motor vehicle of a model year which was released in the current calendar year or the seven calendar years before the current calendar year shall provide a statement to the owner of the motor vehicle when the motor vehicle has sustained motor vehicle body damage requiring disclosure under this section. The owner shall disclose this damage when ownership of the motor vehicle is transferred. When a vehicle is damaged in excess of seventy-five percent of its retail value as determined by the national automobile dealers association official used car guide, the person repairing, replacing parts, or performing body work on the motor vehicle of a model year which has been released in the current calendar year or the seven calendar years before the current calendar year shall also advise the owner of the motor vehicle that the owner of the vehicle must comply with section 39-05-20.2.
  5. The amount of damage to a motor vehicle is determined by adding the retail value of all labor, parts, and material used in repairing the damage. When the retail value of labor has not been determined by a purchase in the ordinary course of business, for example when the labor is performed by the owner of the vehicle, the retail value of the labor is presumed to be the product of the repair time, as provided in a generally accepted autobody repair flat rate manual, multiplied by thirty-five dollars.
  6. A person who violates this section or rules adopted pursuant to this section is guilty of a class A misdemeanor.

Source:

S.L. 1991, ch. 408, § 1; 1997, ch. 330, § 1; 1999, ch. 330, § 4; 1999, ch. 338, § 1; 2019, ch. 312, § 1, effective August 1, 2019.

39-05-17.3. Vehicle leases that are not sales or security interests.

Notwithstanding any other provision of law, a transaction regarding motor vehicles or trailers does not create a sale or security interest merely because an agreement provides that the rental price may be adjusted by reference to the amount realized upon sale or other disposition of the motor vehicle or trailer.

Source:

S.L. 1991, ch. 448, § 2.

39-05-18. Forwarding certificate of title to department not required when transferee is dealer — Exception. [Repealed]

Repealed by S.L. 1951, ch. 250, § 2.

39-05-19. Obtaining certificate of title for vehicle when ownership obtained by other than voluntary means.

Whenever the ownership of any vehicle passes otherwise than by voluntary transfer, the transferee may obtain a certificate of title for the vehicle from the department upon application for the certificate and payment of a fee of five dollars. The application for the certificate must be accompanied by instruments or documents of authority, or copies thereof, as may be required by law to evidence or effect a transfer of title in or to chattels in such case. The department, when satisfied of the genuineness and regularity of such transfer, shall issue a new certificate of title to the person entitled thereto, provided that the department may not issue a certificate of title for a manufactured home with respect to which there has been recorded an affidavit of affixation under section 47-10-27.

Source:

S.L. 1927, ch. 180, § 6, subs. e; 1929, ch. 164, § 1, subs. e; 1931, ch. 187, § 6, subs. e; R.C. 1943, § 39-0519; S.L. 1975, ch. 332, § 3; 1981, ch. 378, § 34; 1983, ch. 421, § 6; 1997, ch. 331, § 1; 2009, ch. 327, § 7.

39-05-20. Transferee may obtain new certificate of title upon inability to obtain old certificate — Proof of ownership — Appeal.

  1. When the transferee of a vehicle is unable to obtain a properly assigned certificate of title for a vehicle, and makes application for a new certificate and presents satisfactory proof of ownership, the department may cancel the old certificate and issue a new certificate to the transferee, provided that the department may not issue a certificate of title for a manufactured home with respect to which there has been recorded an affidavit of affixation under section 47-10-27. Except as otherwise provided by this subsection, satisfactory proof of ownership must include compliance by the transferee with the procedures outlined in title 35.
    1. If the transferee is an insurer that has paid a total loss claim on a vehicle but the payment has not satisfied all liens of record on the vehicle, the transferee is not required to comply with the procedures outlined in title 35 to establish satisfactory proof of ownership and the department may cancel the old certificate of title and issue a new certificate to the insurer free and clear of all liens and claims of ownership.
    2. If the transferee is a tax exempt organization under section 501(c)(3) of the Internal Revenue Code [26 U.S.C. 501(c)(3)] to which a vehicle has been donated, the transferee shall provide an affidavit providing proof the vehicle was donated.
    3. If the transferee is a licensed motor vehicle dealer that, at the request of an insurer, took possession of a vehicle that is the subject of an insurance claim but for which a total loss claim is not paid by the insurer and the vehicle has been in the possession of the dealer for more than thirty days, the necessary satisfactory proof of ownership includes only proof the dealer made at least two written attempts by certified mail with return receipt addressed to the owner of record and any known lienholder to have the vehicle removed from the dealer’s facility, upon payment of applicable charges. If satisfactory proof of ownership is established, the department may cancel the old certificate of title and issue a new certificate to the licensed motor vehicle dealer free and clear of all liens and claims of ownership.
    4. If the transferee is an individual, satisfactory proof of ownership must include that the transferee has paid for the vehicle, and that the transferee made at least two written attempts by certified mail with return receipt addressed to the owner of record and any known lienholder to obtain the certificate of title. If satisfactory proof of ownership is established, the department shall cancel the old certificate of title and issue a new certificate to the individual, subject to any existing lien.
  2. The department may establish procedures for determining satisfactory proof of ownership of a vehicle in those cases when the department is unable to determine the legal owner of record. The procedures may include determining the validity of any liens on a certificate of title. Any person aggrieved by a decision of the department as to ownership of a vehicle may appeal that decision to the district court under chapter 28-32.
  3. A person holding a certificate of title whose interests in the vehicle have been extinguished or transferred other than by voluntary transfer shall mail or deliver the certificate to the department upon request of the department. The delivery of the certificate pursuant to the request of the department does not affect the rights of the person surrendering the certificate. The action of the department in issuing a new certificate of title as provided herein is not conclusive upon the rights of the owner or lienholder listed in the old certificate.

Source:

S.L. 1929, ch. 164, § 1, subs. f; 1931, ch. 187, § 6, subs. f; R.C. 1943, § 39-0520; S.L. 1981, ch. 378, § 35; 1987, ch. 455, § 1; 1989, ch. 459, § 1; 2009, ch. 327, § 8; 2019, ch. 313, § 2, effective August 1, 2019.

39-05-20.1. Salvage certificate of title.

The department shall issue a salvage certificate of title for a salvaged or destroyed vehicle when the owner of the vehicle has returned the certificate of title for the vehicle to the department. The department shall prescribe the form and content of the salvage certificate of title. The certificate must include a prominent notation that it has been issued for a salvaged motor vehicle.

Source:

S.L. 1981, ch. 378, § 24; 1987, ch. 456, § 1.

39-05-20.2. Issuance of salvage certificate of title.

  1. The owner of a vehicle that is damaged in excess of seventy-five percent of the vehicle’s retail value as determined by the national automobile dealers association official used car guide shall forward the title for that vehicle to the department within ten days and the department shall issue a salvage certificate of title. Glass damage and hail damage must be excluded in the determination of whether a vehicle has been damaged in excess of seventy-five percent of the vehicle’s retail value.
  2. If a vehicle for which a salvage certificate of title has been issued is reconstructed, a regular certificate of title may be obtained by completing an application for the certificate. The applicant shall include with the application a certificate of inspection in the form required by the department, the salvage certificate of title, and a five dollar fee. The department shall place on the regular certificate of title and on all subsequent certificates of title issued for the vehicle the words “previously salvaged” and a notation that damage disclosure information is available from the department. The department may not issue a new certificate unless the vehicle identification number of the vehicle has been inspected and found to conform to the description given in the application or unless other proof of the identity of the vehicle has been provided to the satisfaction of the department.
  3. The certificate of inspection required under this section must be completed by a business that is registered with the secretary of state, is in good standing, and offers motor vehicle repair to the public. The business completing the certificate of inspection may not be the business that reconstructed the vehicle and must state the vehicle is in compliance with the requirements of chapter 39-21.

Source:

S.L. 1981, ch. 378, § 26; 1983, ch. 421, § 7; 1987, ch. 456, § 2; 1991, ch. 408, § 2; 1997, ch. 330, § 2; 1999, ch. 338, § 2; 2003, ch. 258, § 4; 2013, ch. 289, § 1.

39-05-20.3. Grounds for refusing certificate of title.

The department may not issue a certificate of title or transfer a certificate of title if:

  1. The application contains any false or fraudulent statements, the applicant has failed to furnish required information or reasonable additional information requested by the department, or the applicant is not entitled to the issuance of a certificate of title under this chapter.
  2. The vehicle is mechanically unfit or unsafe to be operated or moved upon the highways. A vehicle is unfit and unsafe if the vehicle has an out-of-state marked title that includes a certificate for destruction or a notation on the title that the vehicle is scrap, parts-only, junk, unrepairable, nonrebuildable, a dismantler, or any other similar notation.
  3. The department has reason to believe the vehicle is a stolen or embezzled vehicle or the granting of title would constitute a fraud against the rightful owner or other person having valid lien upon the vehicle.
  4. The certificate of title is suspended or revoked for any reason.
  5. The required fee has not been paid.
  6. Any sales tax or motor vehicle excise tax, properly due, has not been paid.
  7. There is failure to provide security for payment of basic no-fault benefits and the liabilities covered under motor vehicle liability insurance on a motor vehicle as required by chapter 26.1-41.

Source:

S.L. 1981, ch. 378, § 29; 1985, ch. 317, § 68; 2013, ch. 290, § 1.

39-05-20.4. Titles for salvage and junk motor vehicles — Rules — Penalty.

The department may adopt rules defining salvage and junk motor vehicles and governing the manner and circumstances under which certificates of title for such a motor vehicle may be required. The rules must describe the facts and circumstances under which a person must receive from the department a salvage certificate of title or a junk certificate of title for a motor vehicle. A person who violates a rule adopted pursuant to this section is guilty of a class A misdemeanor.

Source:

S.L. 1991, ch. 409, § 1.

39-05-21. Refusal to issue certificate of title — Revoking certificate — Appeal.

If the department determines that an applicant for a certificate of title to a vehicle is not entitled thereto, it may refuse to issue the certificate, and in that event, unless the department reverses its decision or its decision is reversed by a court of competent jurisdiction, the applicant has no further right to apply for a certificate of title on the statements in the application. The department, for a like reason, after notice and hearing, may revoke the outstanding certificate of title. Said notice must be served in person or by registered or certified mail. An appeal must be taken in accordance with the provisions of chapter 28-32.

Source:

S.L. 1927, ch. 180, § 8; R.C. 1943, § 39-0521; S.L. 1981, ch. 378, § 36.

39-05-22. Department to maintain file of surrendered certificates of title — Purpose — Records.

The department shall retain and appropriately file every surrendered certificate of title, such file to be maintained to permit the tracing of title of vehicles designated therein.

  1. The department shall file, upon receipt, each affidavit of affixation relating to a manufactured home that is delivered in accordance with section 47-10-27 when satisfied of the affidavit’s genuineness and regularity.
  2. The department shall maintain a record of each affidavit of affixation filed in accordance with subsection 1. The record must state the name of each owner of the related manufactured home, the county of recordation, the date of recordation, the book and page number of each book of records in which there has been recorded an affidavit of affixation under section 47-10-27, and any other information the department prescribes.
  3. The department shall file, upon receipt, each application for surrender of the manufacturer’s certificate of origin relating to a manufactured home that is delivered in accordance with subsection 1 of section 39-05-35, when satisfied of the application’s genuineness and regularity.
  4. The department shall file, upon receipt, each application for surrender of the certificate of title relating to a manufactured home that is delivered in accordance with subsection 2 of section 39-05-35, when satisfied of the application’s genuineness and regularity.
  5. The department shall file, upon receipt, each application for confirmation of conversion relating to a manufactured home that is delivered in accordance with subsection 3 of section 39-05-35, when satisfied of the application’s genuineness and regularity.
  6. The department shall maintain a record of each manufacturer’s certificate of origin accepted for surrender as provided in subsection 1 of section 39-05-35. The record must state the name of each owner of the manufactured home, the date the manufacturer’s certificate of origin was accepted for surrender, the county of recordation, the date of recordation, the book and page number of each book of records in which there has been recorded an affidavit of affixation under section 47-10-27, and any other information the department prescribes.
  7. The department shall maintain a record of each manufactured home certificate of title accepted for surrender as provided in subsection 2 of section 39-05-35. The record must state the name of each owner of the manufactured home, the date the certificate of title was accepted for surrender, the county of recordation, the date of recordation, the book and page number of each book of records in which there has been recorded an affidavit of affixation under section 47-10-27, and any other information the department prescribes.
  8. The department shall maintain a record of each application for confirmation of conversion accepted as provided in subsection 3 of section 39-05-35. The record must state the name of each owner of the manufactured home, the county of recordation, the date of recordation, the book and page number of each book of records in which there has been recorded an affidavit of affixation under section 47-10-27, and any other information the department prescribes.
  9. Records of surrendered certificates of title and the records referred to in subsections 6, 7, and 8 must be maintained permanently. The department shall maintain a website an interested person may use to supply a vehicle identification number in order to confirm the status of a manufactured home as real estate under subsection 6 of section 47-10-27 and to confirm the department retired the manufacturer’s certificate of origin or certificate of title.

Source:

S.L. 1927, ch. 180, § 7, subs. a; 1931, ch. 187, § 7, subs. a; R.C. 1943, § 39-0522; S.L. 1971, ch. 369, § 1; 2009, ch. 327, § 9; 2011, ch. 270, § 1; 2017, ch. 261, § 1, effective August 1, 2017.

39-05-23. Peace officers to report stolen and recovered motor vehicles to department. [Repealed]

Repealed by S.L. 1963, ch. 265, § 7.

39-05-24. Index of stolen and recovered motor vehicles kept by department — Department to report to municipalities, counties, and other states. [Repealed]

Repealed by S.L. 1963, ch. 265, § 7.

39-05-25. Receiving, transferring, or having possession of stolen vehicles — Felony. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

39-05-26. Used car dealers to maintain records — Contents. [Repealed]

Repealed by S.L. 1975, ch. 328, § 1.

39-05-27. Vehicle dealer to have certificate of title or other documentary evidence to prove possession.

Every vehicle dealer shall have in the dealer’s possession a separate certificate of title assigned to such dealer or other documentary evidence of the dealer’s right to the possession of every vehicle in the dealer’s possession.

Source:

S.L. 1927, ch. 180, § 16, subs. b; R.C. 1943, § 39-0527; S.L. 1963, ch. 265, § 4; 1981, ch. 378, § 37.

Notes to Decisions

Security Interests Governed by U.C.C.

Security interests in a dealer’s automobile inventory are governed by the U.C.C. rather than by title registration statutes. Bank of Beulah v. Chase, 231 N.W.2d 738, 1975 N.D. LEXIS 182 (N.D. 1975).

39-05-28. Penalty for defacing, destroying, removing, or altering engine, serial, or identification numbers.

Any person who with fraudulent intent shall:

  1. Deface, destroy, remove, or alter the engine, serial, or identification number of a motor vehicle;
  2. Place or stamp other than the original engine, serial, or identification number, or a number assigned, upon a motor vehicle; or
  3. Sell or offer for sale any motor vehicle bearing an altered or defaced engine, serial, or identification number, other than the original or a number assigned,

is guilty of a class C felony.

Source:

S.L. 1927, ch. 180, § 13, subs. b; 1931, ch. 187, § 8, subs. b; R.C. 1943, § 39-0528; S.L. 1975, ch. 106, § 427; 1993, ch. 381, § 1.

Cross-References.

Punishment for felony, see § 12.1-32-01.

39-05-29. Registration of housetrailers — Provisions of chapter not applicable to trailers or semitrailers less than fifty dollars in value. [Repealed]

Repealed by S.L. 1961, ch. 253, § 6.

Note.

For present provisions, see § 39-18-03.

39-05-30. Fees and revenues collected placed in highway tax distribution fund — Payment of salaries and expenses.

All fees and revenues received by the director under the provisions of this chapter must be deposited by the director in the state treasury. Such moneys must be placed in the highway tax distribution fund. All salaries and other expenses incurred in connection with the provisions of this chapter must be paid out of the motor vehicle registration fund in the manner provided by law for the disbursement of said fund.

Source:

S.L. 1927, ch. 180, § 17; 1933, ch. 160, § 13; R.C. 1943, § 39-0530; 2007, ch. 316, § 3; 2009, ch. 326, § 3.

39-05-31. Director may employ office help and purchase supplies.

Within the legislative appropriation, the director may employ all office help and purchase all supplies necessary to carry out the provisions of this chapter.

Source:

S.L. 1927, ch. 180, § 17; 1933, ch. 160, § 13; R.C. 1943, § 39-0531.

39-05-31.1. Administration of oaths.

Officers and employees of the department designated by the director may administer oaths for the purposes of this chapter but may not charge any fee therefor.

Source:

S.L. 1981, ch. 378, § 25.

39-05-32. Officers to enforce provisions of chapter.

The highway patrol and all other road or police officers shall enforce the provisions of this chapter.

Source:

S.L. 1927, ch. 180, § 17; 1933, ch. 160, § 13; R.C. 1943, § 39-0532; S.L. 1973, ch. 296, § 1; 1983, ch. 418, § 6.

39-05-33. General penalty.

Any person violating any provision of this chapter for which another penalty is not provided specifically is guilty of a class B misdemeanor. This section does not apply to the department.

Source:

S.L. 1927, ch. 180, § 19; R.C. 1943, § 39-0533; S.L. 1975, ch. 106, § 428; S.L. 2005, ch. 327, § 4.

Cross-References.

Classification of offenses, penalties, see § 12.1-32-01.

39-05-34. Penalty for felony. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

39-05-35. Manufactured homes — Conversion to real property — Procedure — Rules.

    1. The owner or, if there is more than one owner, all owners, of a manufactured home that is covered by a manufacturer’s certificate of origin which the owner is able to produce and that is permanently affixed to real property as defined in subsection 1 of section 47-10-27, or which the owner intends to permanently affix to real property as defined in subsection 1 of section 47-10-27, may surrender the manufacturer’s certificate of origin to the manufactured home to the department by filing with the department an application for surrender of manufacturer’s certificate of origin containing or accompanied by:
      1. The name, residence, and mailing address of the owner;
      2. A description of the manufactured home, including the name of the manufacturer, the make, the model name, the model year, the dimensions, the manufacturer’s serial number of the manufactured home, whether the manufactured home is new or used, and any other information the department requires;
      3. The date of purchase by the owner of the manufactured home, the name and address of the person from whom the home was acquired, and the names and addresses of any security interest holders and lienholders in the order of their apparent priority;
      4. A statement, signed by the owner, stating either:
        1. Any facts or information known to the owner that may affect the validity of the title to the manufactured home or the existence or nonexistence of a security interest in or lien on the manufactured home; or
        2. That no such facts or information are known to the owner;
      5. A copy of the recorded affidavit of affixation as provided in accordance with subsection 5 of section 47-10-27;
      6. The original manufacturer’s certificate of origin;
      7. The name and mailing address of each person wishing written acknowledgment of surrender from the department;
      8. The applicable fee for filing the application for surrender; and
      9. Any other information and documents the department reasonably requires to identify the owner of the manufactured home and to enable the department to determine whether the owner satisfied the requirements of subdivisions a through c of subsection 6 of section 47-10-27 and is entitled to surrender the manufacturer’s certificate of origin and the existence or nonexistence of security interests in or liens on the manufactured home.
    2. When satisfied of the genuineness and regularity of the surrender of a manufacturer’s certificate of origin to a manufactured home and upon satisfaction of the requirements of subdivision a, the department shall:
      1. Cancel the manufacturer’s certificate of origin and update the department’s records in accordance with the provisions of section 39-05-22; and
      2. Provide written acknowledgment of compliance with the provisions of this section to each person identified on the application for surrender of a manufacturer’s certificate of origin under paragraph 7 of subdivision a.
    3. Upon satisfaction of the requirements of this subsection, a manufactured home must be conveyed or encumbered as provided in chapter 47-10. If the application to surrender a manufacturer’s certificate of origin is delivered to the department within sixty days of recording the related affidavit of affixation with the recorder in the county in which the real property to which the manufactured home is or will be affixed and the application is thereafter accepted by the department, the requirements of this subsection are deemed satisfied as of the date the affidavit of affixation was recorded.
    4. Upon written request, the department shall provide written acknowledgment of compliance with the provisions of this subsection.
    1. The owner or, if there is more than one owner, all owners, of a manufactured home that is covered by a certificate of title which the owner is able to produce and that is permanently affixed to real property as defined in subsection 1 of section 47-10-27, or which the owner intends to permanently affix to real property as defined in subsection 1 of section 47-10-27, may surrender the certificate of title to the manufactured home to the department by filing with the department an application for surrender of title containing or accompanied by:
      1. The name, residence, and mailing address of the owner;
      2. A description of the manufactured home, including the name of the manufacturer, the make, the model name, the model year, the dimensions, the manufacturer’s serial number of the manufactured home, whether the manufactured home is new or used, and any other information the department requires;
      3. The date of purchase by the owner of the manufactured home, the name and address of the person from whom the home was acquired, and the names and addresses of any security interest holders and lienholders in the order of their apparent priority;
      4. A statement, signed by the owner, stating either:
        1. Any facts or information known to the owner that may affect the validity of the title to the manufactured home or the existence or nonexistence of a security interest in or lien on the manufactured home; or
        2. That no such facts or information are known to the owner;
      5. A copy of the recorded affidavit of affixation provided in accordance with subsection 5 of section 47-10-27;
      6. The original certificate of title;
      7. The name and mailing address of each person wishing written acknowledgment of surrender from the department;
      8. The applicable fee for filing the application for surrender; and
      9. Any other information and documents the department reasonably requires to identify the owner of the manufactured home and to enable the department to determine whether the owner satisfied the requirements of subdivisions a through c of subsection 6 of section 47-10-27 and is entitled to surrender the certificate of title and the existence or nonexistence of security interests in or liens on the manufactured home.
    2. The department may not accept for surrender a certificate of title to a manufactured home unless and until all security interests or liens perfected under section 35-01-05.1 have been released.
    3. When satisfied of the genuineness and regularity of the surrender of a certificate of title to a manufactured home and upon satisfaction of the requirements of subdivisions a and b, the department shall:
      1. Cancel the certificate of title and update the department’s records in accordance with the provisions of section 39-05-22; and
      2. Provide written acknowledgment of compliance with the provisions of this section to each person identified on the application for surrender of title under paragraph 7 of subdivision a.
    4. Upon satisfaction of the requirements of this subsection, a manufactured home must be conveyed or encumbered as provided in chapter 47-10. If the application to surrender a certificate of title is delivered to the department within sixty days of recording the related affidavit of affixation with the recorder in the county in which the real property to which the manufactured home is or will be affixed, and the application is thereafter accepted by the department, the requirements of this subsection are deemed satisfied as of the date the affidavit of affixation was recorded.
    5. Upon written request, the department shall provide written acknowledgment of compliance with the provisions of this subsection.
    1. The owner or, if there is more than one owner, all owners, of a manufactured home that is not covered by a manufacturer’s certificate of origin or a certificate of title, or of a manufactured home that is covered by a manufacturer’s certificate of origin or certificate of title but which the owner of the manufactured home, after diligent search and inquiry, is unable to produce, and that is permanently affixed to real property as defined in subsection 1 of section 47-10-27, or which the owner intends to permanently affix to real property as defined in subsection 1 of section 47-10-27, may apply to the department by filing with the department an application for confirmation of conversion containing or accompanied by:
      1. The name, residence, and mailing address of the owner;
      2. A description of the manufactured home, including the name of the manufacturer, the make, the model name, the model year, the dimensions, the manufacturer’s serial number of the manufactured home, whether the manufactured home is new or used, and any other information the department requires;
      3. The date of purchase by the owner of the manufactured home, the name and address of the person from whom the home was acquired, and the names and addresses of any security interest holders and lienholders in the order of their apparent priority;
      4. A statement, signed by the owner, stating either:
        1. Any facts or information known to the owner that could affect the validity of the title to the manufactured home or the existence or nonexistence of a security interest in or lien on the manufactured home; or
        2. That no such facts or information are known to the owner;
      5. A recorded copy of the affidavit of affixation as provided in accordance with subsection 5 of section 47-10-27;
      6. A sworn declaration by an attorney duly admitted to practice in this state or an agent of a title insurance company duly licensed to issue policies of title insurance in this state that the manufactured home is free and clear of, or has been released from, all recorded security interests, liens, and encumbrances; and
        1. Any facts or information known to that person that could affect the validity of the title of the manufactured home or the existence or nonexistence of any security interest in or lien on the manufactured home; or
        2. That no such facts or information are known to that person;
      7. The name and mailing address of each person wishing written acknowledgment of surrender from the department;
      8. The applicable fee for filing the application for surrender; and
      9. Any other information and documents the department reasonably requires to identify the owner of the manufactured home and to enable the department to determine whether the owner satisfied the requirements of subdivisions a through c of subsection 6 of section 47-10-27 and the existence or nonexistence of security interests in or liens on the manufactured home.
    2. When satisfied of the genuineness and regularity of the application for confirmation of conversion of a manufactured home and upon satisfaction of the requirements of subdivision a, the department shall:
      1. Update its records in accordance with the provisions of section 39-05-22; and
      2. Provide written acknowledgment of compliance with the provisions of this subsection to each person identified on the application for confirmation of conversion under paragraph 7 of subdivision a.
    3. Upon satisfaction of the requirements of this subsection, a manufactured home must be conveyed or encumbered as provided in chapter 47-10. If the application for confirmation of conversion of a manufactured home is delivered to the department within sixty days of recording the related affidavit of affixation with the recorder in the county in which the real property to which the manufactured home is or will be affixed and the application is thereafter accepted by the department, the requirements of this subsection are deemed satisfied as of the date the affidavit of affixation was recorded.
    4. Upon written request, the department shall provide written acknowledgment of compliance with the provisions of this subsection.
  1. The department may adopt rules to implement the provisions of this section.

Source:

S.L. 2009, ch. 327, § 10.

CHAPTER 39-06 Operators’ Licenses

39-06-01. Operators must be licensed — Additional licensing — Penalty.

  1. An individual, unless exempted in this section, may not drive any motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this state unless the individual has a valid license as an operator under this chapter or a temporary operator’s permit issued under chapter 39-20. An individual may not receive an operator’s license or a nondriver identification card until that individual surrenders to the director all operator’s licenses, permits, and nondriver photo identification cards issued to that individual by any state or country. If a license issued by another state is surrendered, the director shall notify the issuing state of the surrender. An individual may be issued either a valid operator’s license or a nondriver identification card at any one time, but not both.
  2. An individual licensed as an operator may exercise the privilege granted by the license on any highway in this state and may not be required to obtain any other license to exercise the privilege by any political subdivision having authority to adopt police regulations, except that municipalities may regulate occupations and may regulate the operation of taxicabs under subsection 27 of section 40-05-01.

Source:

S.L. 1955, ch. 251, § 1; R.C. 1943, 1957 Supp., § 39-0601; S.L. 1961, ch. 257, § 1; 1963, ch. 277, § 2; 1975, ch. 339, § 2; 1977, ch. 354, § 1; 1983, ch. 415, § 4; 1989, ch. 460, § 1; 2011, ch. 271, § 2; 2013, ch. 291, § 3; 2017, ch. 256, § 2, effective August 1, 2017.

Notes to Decisions

In General.

This section, which requires motor vehicle operators to be licensed, is not a grant of a title of nobility and unconstitutional under the United States Constitution and the North Dakota Constitution; a driver’s license has no connection with social rank and bestows nothing more than the authority to operate a motor vehicle. State v. Larson, 419 N.W.2d 897, 1988 N.D. LEXIS 60 (N.D. 1988).

Constitutionality.

The legislature has the constitutional police power to ensure safe drivers and safe roads. City of Bismarck v. Stuart, 546 N.W.2d 366, 1996 N.D. LEXIS 118 (N.D. 1996).

Evidence of Negligence.

Evidence indicating that defendant did not have a valid driver’s license was inadmissible to prove that she acted negligently on the occasion in question, where defendant had been driving for twenty years, had been operating a motor vehicle on a daily basis since 1977, and prior to the accident in question had never been involved in an accident. Knudtson v. McLees, 443 N.W.2d 903, 1989 N.D. LEXIS 143 (N.D. 1989).

Probable Cause.

Driving a vehicle without a license and erratic driving are relevant factors for a police officer to consider in determining probable cause to arrest. Chadwick v. Moore, 551 N.W.2d 783, 1996 N.D. LEXIS 180 (N.D. 1996).

Right to Drive on Highways.

Citizen does not have an inalienable right to drive on the highways in this state in violation of state laws, including driver licensing laws. State v. Kouba, 319 N.W.2d 161, 1982 N.D. LEXIS 272 (N.D. 1982).

DECISIONS UNDER PRIOR LAW

License.

Where a statute requiring an operator of a motor vehicle to have a driver’s license made no provision for an annual license, the license issued thereunder to an operator remained in force until suspended or revoked. State ex rel. Jordan v. Anstrom, 67 N.D. 175, 270 N.W. 895, 1937 N.D. LEXIS 71 (N.D. 1937).

Collateral References.

Lack of proper automobile registration or operator’s license as evidence of operator’s negligence, 29 A.L.R.2d 963.

Liability of donor of motor vehicle for injuries resulting from owner’s operation, 22 A.L.R.4th 738.

Validity of state statutes, regulations, or other identification requirements restricting or denying driver’s licenses to illegal aliens, 16 A.L.R.6th 131.

39-06-01.1. Special provisions for minor operators.

  1. The director shall cancel the operator’s license of an individual who has committed acts resulting in an accumulated point total in excess of five points as provided for a violation under section 39-06.1-10 if:
    1. The acts or offenses were committed while the individual was a minor; and
    2. The individual admitted the violation, was found to have committed the violation by the official having jurisdiction, or pled guilty to, was found guilty of, or adjudicated to have committed the offense.
  2. The director shall cancel the operator’s license of an individual who has committed an alcohol-related offense or a drug-related offense while operating a motor vehicle if:
    1. The offense was committed while the individual was a minor;
    2. The individual was found to have committed the offense by the official having jurisdiction, or pled guilty to, was found guilty of, or adjudicated to have committed the offense;
    3. The offense created an imminent risk of injury to another individual;
    4. A lesser penalty would be ineffective to prevent future risk to another individual; and
    5. The official having jurisdiction orders the director to cancel the operator’s license.
  3. If an individual has had that individual’s license to operate a motor vehicle canceled under subsection 1 or 2, the director shall deem that individual to have never have had any license to operate a motor vehicle and may not issue any license to operate a motor vehicle other than an instruction permit or a restricted instruction permit after the completion of any period of suspension or revocation. After the issuance of an instruction permit or restricted instruction permit, the director may not issue any other operator’s license to that individual until that individual:
    1. Meets the requirements of section 39-06-17. The driver education requirement may be met through either an internet course or successfully completing a course at an approved commercial driver training school meeting the requirements of chapter 39-25; and
    2. Satisfies all other requirements that apply to that individual for that operator’s license.

Source:

S.L. 1999, ch. 341, § 3; 2001, ch. 338, § 1; 2011, ch. 271, § 3; 2013, ch. 291, § 4; 2015, ch. 275, § 1, effective August 1, 2015; 2021, ch. 284, § 1, effective August 1, 2021.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 275, S.L. 2015 became effective August 1, 2015.

Notes to Decisions

Cancellation of License.

Nothing in this section or its legislative history indicates it was specifically directed at the problem of minors drinking while they were driving, while ignoring minors who drink before driving. Russell v. Z.C.B. (In the Interest of Z.C.B.), 2003 ND 151, 669 N.W.2d 478, 2003 N.D. LEXIS 165 (N.D. 2003).

Ex Post Facto Application.

This section was not applied retroactively to a minor driver who was convicted of a traffic offense resulting in the assessment of 6 points against her driving record where the offense triggering the cancellation of her license occurred subsequent to the effective date of this section; furthermore, the minor driver was not entitled to notice of the enactment of the section given that its enactment did not change the status of her license but merely changed the consequence of her subsequent traffic conviction. Rott v. North Dakota DOT, 2000 ND 175, 617 N.W.2d 475, 2000 N.D. LEXIS 192 (N.D. 2000).

Law Reviews.

North Dakota Supreme Court Review (Lentz v. Spryncznatyk), 82 N.D. L. Rev. 1033 (2006).

39-06-01.2. Anatomical gifting.

The application for nondriver photo identification cards and operator’s licenses must include a statement making an anatomical gift and provide for the voluntary identification of the applicant as a donor under chapter 23-06.6. In addition, identification of the applicant as a donor under chapter 23-06.6 may be completed by an online registry approved by the director. If the applicant’s donor intention is made by the online registry, the intention must be recorded on the applicant’s record. The intention is not required on the identification card or license unless a duplicate card is obtained or at the time of renewal. The department may not be held civilly or criminally liable for any act or omission in implementing and maintaining the online registration of donors.

Source:

S.L. 2011, ch. 271, § 4; 2013, ch. 291, § 5.

39-06-01.3. Compliance with federal selective service requirement.

  1. Upon submission of an application for an initial, renewal, or duplicate instruction permit, operator’s license, or a nondriver identification card by a man at least eighteen years of age and under the age of twenty-six, the department shall provide for the registration of the applicant with the selective service system.
  2. The department shall provide language on the application informing the applicant his signature on the application serves as an acknowledgment the applicant already has registered with the selective service system or the applicant consents to registration.
  3. An applicant who objects to registration for conscientious, religious, or other grounds may contact the selective service system for alternative options.
  4. The department shall forward the applicant’s necessary personal information to the selective service system for registration.

Source:

S.L. 2019, ch. 314, § 1, effective August 1, 2019.

39-06-02. Individuals who are exempt from having an operator’s license — Resident defined.

  1. The following individuals are exempt from having an operator’s license:
    1. An employee of the United States government while operating a motor vehicle owned by or leased to that government and being operated on official business.
    2. A nonresident who is at least sixteen years of age, who has in that individual’s immediate possession a valid operator’s license issued to that individual in that individual’s home state or country.
    3. A member of the armed forces of the United States while that individual is stationed in North Dakota, if that individual has a valid current operator’s license from another state.
    4. An individual over sixteen years of age who becomes a resident of this state and who has in possession a valid operator’s license issued to that individual under the laws of some other state or country or by military authorities of the United States for a period of not more than sixty days after becoming a resident of this state.
    5. A member of the North Dakota national guard operating any military vehicles as authorized by a national guard operator’s license while on duty.
  2. For purposes of this chapter, an individual is deemed a resident of this state when the individual has lived in the state for ninety consecutive days, unless the individual is a nonresident student, a tourist, or a member of the armed forces.

Source:

S.L. 1955, ch. 251, § 2; R.C. 1943, 1957 Supp., § 39-0602; S.L. 1959, ch. 291, § 1; 1963, ch. 277, § 3; 1983, ch. 429, § 1; 1989, ch. 460, § 2; 1997, ch. 332, § 1; 2013, ch. 291, § 6; 2017, ch. 262, § 1, effective August 1, 2017.

Cross-References.

Extended term of license held by members of armed forces, see § 39-06-19.1.

39-06-03. No operator’s license to certain individuals.

The director may not issue an operator’s license:

  1. To an individual who is under the age of sixteen years, except that the director may issue an instructional permit under section 39-06-04, a restricted permit under section 39-06-05, or a license under section 39-06-17.
  2. To an individual whose license has been suspended or revoked in this state or in any other state during the suspension, except under section 39-06.1-03 or 39-06.1-11, or to any person whose license has been revoked, except under sections 39-06-35, 39-06-36, and 39-06.1-11.
  3. To an individual who has previously been adjudged to be afflicted with or suffering from any mental disability or disease and who has not at the time of application been restored to competency by the methods provided by law.
  4. To an individual who is required by this chapter to take an examination, unless the individual has successfully passed such examination.
  5. To an individual who is required under the laws of this state to deposit security or file proof of financial responsibility and who has not deposited the security or filed the proof.
  6. To an individual if the director has good cause to believe that the individual by reason of physical or mental disability would not be able to operate a motor vehicle with safety.
  7. To an individual when the director has good cause to believe that the operation of a motor vehicle on the highways by that individual would be inimical to public safety or welfare.

Source:

S.L. 1955, ch. 251, § 3; R.C. 1943, 1957 Supp., § 39-0603; S.L. 1967, ch. 292, § 2; 1969, ch. 340, § 1; 1973, ch. 301, § 18; 1975, ch. 339, § 3; 1977, ch. 348, § 2; 2005, ch. 328, § 1; 2009, ch. 328, § 1; 2011, ch. 272, § 2; 2013, ch. 291, § 7; 2015, ch. 268, § 4, effective April 15, 2015.

Effective Date.

The 2015 amendment of this section by section 4 of chapter 268, S.L. 2015 became effective April 15, 2015, pursuant to an emergency clause in section 15 of chapter 268, S.L. 2015.

Collateral References.

Age requirements for licensing of motor vehicle operators, validity, construction, and application of, 86 A.L.R.3d 475.

39-06-03.1. Nondriver photo identification card issued by director — Release of information — Penalty — Public awareness.

  1. The director shall issue a nondriver color photo identification card to any resident of this state who fulfills the requirements of this section. An application for an identification card must be made on a form furnished by the director. Within thirty days from receipt of a complete application that includes the applicant’s social security number, unless the applicant is a nonimmigrant who is not eligible for a social security number, the director shall determine whether to issue and, if appropriate, issue a nondriver photo identification card to an applicant. The director may not withhold the issuance of a nondriver color photo identification card without reasonable cause. If the applicant is under the age of eighteen or at least the age of eighteen and under the age of twenty-one, the photo must be against the same color background required on a motor vehicle operator’s license for an operator of that age. Subject to section 39-06-19, identification cards expire eight years from the date of issue and may be renewed. The application must contain other information as the director may require to improve identity security.
  2. The director shall issue a nondriver color photo identification card to any resident who at the time of application is not a citizen of the United States and who fulfills the requirements of this section. The identification card must be designed in a manner to clearly make the card distinguishable from a similar card issued to a citizen of the United States and resident of this state. The card may be replaced with a card issued to a citizen of this country and resident of this state only when proof of United States citizenship is provided by the individual and any applicable replacement fee listed in section 39-06-49 is paid.
  3. To confirm the identity, date of birth, and legal presence of the applicant, the director or examining officer shall require satisfactory evidence be provided by the applicant. Satisfactory evidence includes a certified copy of the applicant’s birth certificate or other evidence reasonably calculated to permit the determination of the date of birth, identification, and legal presence of the applicant by the director or examining officer. The director may require an applicant for an identification card to provide a social security card and proof of residence address.
  4. The application fee is listed in section 39-06-49. Except for a duplicate or replacement card, the director may not charge a fee to provide a nondriver photo identification card to an eligible applicant.
  5. Any information obtained by the director from an applicant for the issuance, renewal, or replacement of an identification card may not be released unless allowed under section 39-16-03.
  6. The director may advertise the availability and the use of the card.
  7. Identification cards issued under this section are sufficient identification for all identification purposes.

Source:

S.L. 1977, ch. 342, § 1; 1983, ch. 429, § 2; 1987, ch. 440, § 2; 1987, ch. 457, § 1; 1987, ch. 458, § 1; 1993, ch. 375, § 3; 1995, ch. 370, § 1; 1999, ch. 339, § 1; 1999, ch. 340, § 2; 2005, ch. 231, § 3; 2007, ch. 322, § 1; 2007, ch. 323, § 1; 2007, ch. 237, § 4; 2009, ch. 329, § 1; 2009, ch. 330, § 1; 2011, ch. 271, § 5; 2013, ch. 167, § 7; 2013, ch. 291, § 8; 2017, ch. 152, § 10, effective July 1, 2017; 2017, ch. 256, § 3, effective August 1, 2017.

Note.

Section 39-06-03.1 was amended 2 times by the 2017 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 10 of Chapter 152, Session Laws 2017, House Bill 1369; and Section 3 of Chapter 256, Session Laws 2017, House Bill 1128.

39-06-04. Class D instruction permit.

  1. Any resident of this state who is at least fourteen years of age may apply to the director for a class D instruction permit.
  2. The director may issue a class D instruction permit that entitles the applicant while having the permit in the permittee’s immediate possession to drive a motor vehicle upon the public highways, if the individual:
    1. Has successfully passed a standard written rules of the road knowledge test prescribed by the director;
    2. Has successfully passed a vision examination; and
    3. Has the written approval of the individual’s parent or legal guardian.
  3. The permittee must be accompanied by an individual with a class A, B, C, or D license in a vehicle allowed to be operated with a class D license, who is at least eighteen years of age, who has had at least three years of driving experience, and who is occupying a seat beside the driver. An individual other than the supervising driver and the permitholder may not be in the front seat unless the vehicle has only a front seat, in which case, the supervising driver must be seated next to the permitholder.
  4. An individual who is not yet eighteen years of age is not eligible for a class D license until that individual has had an instruction permit issued for at least six months or at least twelve months if under the age of sixteen. The director may recognize an instruction permit issued by another jurisdiction in computing the six-month or twelve-month instructional period.
  5. The permittee may not operate an electronic communication device to talk, compose, read, or send an electronic message while operating a motor vehicle that is in motion unless the sole purpose of operating the device is to obtain emergency assistance, to prevent a crime about to be committed, or in the reasonable belief that an individual’s life or safety is in danger.

Source:

S.L. 1955, ch. 251, § 4; R.C. 1943, 1957 Supp., § 39-0604; S.L. 1967, ch. 292, § 3; 1977, ch. 343, § 1; 1987, ch. 458, § 2; 1989, ch. 460, § 3; 1999, ch. 341, § 1; 2011, ch. 272, § 3; 2013, ch. 291, § 9; 2013, ch. 298, § 1.

Collateral References.

Liability, for personal injury or property damage, for negligence in teaching or supervision of learning driver, 5 A.L.R.3d 271.

39-06-05. Restricted instruction permit — When instruction permit not required — Driver’s training course.

  1. The director upon receiving proper application may issue a restricted instruction permit effective for a school year or more restricted period to an applicant who is at least fourteen years of age and enrolled in a commercial driver training course that includes practice driving and which is approved by the director of the highway patrol under chapter 39-25. The restricted instruction permit entitles the permittee when the permittee has the permit in the permittee’s immediate possession to operate a motor vehicle with an approved instructor occupying a seat beside the permittee and on a designated highway or within a designated area.
    1. Subject to subdivision b, any student enrolled in behind-the-wheel driver’s training through a high school program approved by the superintendent of public instruction may operate a motor vehicle, under the supervision of a driver training instructor certified by the superintendent of public instruction, without a permit or license to operate a motor vehicle, if the school district sponsoring the driver’s training program has an insurance policy covering any damage that may be done by a student while operating the vehicle and proof of coverage is filed with the superintendent of public instruction by the school district’s insurance carrier. The insurance coverage must be in the amount required to establish proof of financial responsibility.
    2. A student may not enroll in a driver’s training course through a high school program approved by the superintendent of public instruction unless the student will be at least fourteen years of age by the completion date of the classroom portion of the driver’s training course. A student may not participate in the behind-the-wheel driver’s training portion of the driver’s training course until the student is at least fourteen years of age. A student must complete the driver’s training course’s required amount of behind-the-wheel driver’s training before successfully completing the course.

Source:

S.L. 1955, ch. 251, § 5; R.C. 1943, 1957 Supp., § 39-0605; S.L. 1975, ch. 333, § 1; 1985, ch. 317, § 69; 1987, ch. 458, § 3; 1991, ch. 410, § 1; 2013, ch. 291, § 10; 2019, ch. 315, § 1, effective August 1, 2019.

39-06-06. Temporary operator’s permit.

The director may issue a temporary operator’s permit for the operation of a motor vehicle to an applicant for an operator’s license pending an investigation and determination of facts relative to the applicant’s right to receive an operator’s license. The permit must be in the applicant’s immediate possession while operating a motor vehicle and is invalid if the applicant’s license has been issued or denied.

Source:

S.L. 1955, ch. 251, § 6; R.C. 1943, 1957 Supp., § 39-0606; S.L. 1987, ch. 458, § 4; 2013, ch. 291, § 11.

39-06-07. Application for operator’s license.

  1. An applicant for an operator’s license must be made upon a form furnished by the director.
  2. An applicant must state on the application the full name, date of birth, sex, social security number, unless the applicant is a nonimmigrant who is not eligible for a social security number or the applicant provides an affidavit stating the applicant was not assigned a social security number, residence and mailing address, and provide a brief description of the applicant. By signing the application the applicant is deemed to have certified that all information contained on the application is true and correct. The application must be accompanied by the fee listed in section 39-06-49. The application must contain any other information as the director may require to improve identity security. The director may require an applicant to provide a social security card and proof of residence address.
  3. If an application is received from an individual previously licensed in another jurisdiction, the director may request a copy of the driver’s record from the other jurisdiction. A copy of another jurisdiction’s driving record becomes a part of the driving record in this state with the same force and effect as though entered on the driving record in this state in the original instance.

Source:

S.L. 1955, ch. 251, § 7; R.C. 1943, 1957 Supp., § 39-0607; S.L. 1963, ch. 278, § 1; 1977, ch. 344, § 1; 1979, ch. 405, §§ 2, 3; 1981, ch. 384, § 2; 1989, ch. 303, § 3; 1999, ch. 141, § 20; 2007, ch. 237, § 5; 2009, ch. 329, § 2; 2011, ch. 271, § 6; 2013, ch. 291, § 12; 2021, ch. 285, § 1, effective August 1, 2021.

Decisions under Prior Law

Application for Renewal of Driver’s License.

Driver did not present the North Dakota Department of Transportation with a complete application for renewal of his driver’s license containing his social security number, and did not demonstrate a clear legal right to performance of the act sought to be compelled by his petition for a writ of mandamus; the trial court abused its discretion in ordering issuance of a license to the driver without the provision of a social security number. Kouba v. Hoeven, 2004 ND 185, 687 N.W.2d 491, 2004 N.D. LEXIS 312 (N.D. 2004).

39-06-07.1. Proof of name, date of birth, legal presence, and citizenship for operator’s license application — License difference for citizens and noncitizens — Primary source identity documents.

  1. An applicant must verify the applicant’s name, date of birth, and legal presence on any application by a certified birth certificate or any other documentary evidence that confirms to the satisfaction of the director the true identity, date of birth, legal presence, and citizenship of the applicant. The license issued to a noncitizen of the United States must be designed in a manner to distinguish the license clearly from a similar license issued to a citizen of the United States.
  2. Primary source identity documents retained by the department are not public records.

Source:

S.L. 1975, ch. 334, § 1; 1987, ch. 458, § 5; 1997, ch. 332, § 2; 2009, ch. 329, § 3; 2013, ch. 291, § 13; 2017, ch. 152, § 11, effective July 1, 2017; 2017, ch. 256, § 4, effective August 1, 2017.

Note.

Section 39-06-07.1 was amended 2 times by the 2017 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 11 of Chapter 152, Session Laws 2017, House Bill 1369; and Section 4 of Chapter 256, Session Laws 2017, House Bill 1128.

39-06-07.2. Medical advice — Use by director — Driver’s duty to report certain injuries.

  1. The director is authorized to seek professional medical advice from a licensed medical care provider and to use that advice in decisions made by the director in regard to the issuance, renewal, suspension, revocation, or cancellation of an operator’s license under this chapter. The director may receive advice in any manner.
  2. In addition to advice sought and received under subsection 1, the director may consider information and advice received from an applicant’s or motor vehicle operator’s licensed health care provider. Any examination and report requested by the applicant, motor vehicle operator, or director under this chapter is at the expense of the applicant or motor vehicle operator.
  3. Any licensed health care provider does not incur any liability for any opinion, recommendation, or advice provided to the director under subsection 1.
  4. Advice and information received by the director under subsection 1 which relates to an individual applicant or motor vehicle operator is for the confidential use of the director in making decisions on the individual’s qualifications as a driver, and the information may not be divulged to any person or used in evidence in any trial or proceeding except in matters concerning the individual’s qualifications to receive or retain an operator’s license.
  5. In addition to other sources of information, general advice and information received by the director under this section may be used by the director in the adoption of administrative rules concerning medical criteria for driver licensing.
  6. Before operating any motor vehicle the holder of an operator’s license issued under this chapter who has suffered permanent loss of use of a hand, arm, foot, leg, or eye shall report the loss of use to the director who shall take reasonable action as may be proper under this chapter as to re-examination of the licensee to determine if the licensee is capable of operating vehicles for which the licensee is licensed.

Source:

S.L. 1981, ch. 384, § 1; 1999, ch. 340, § 3; 2011, ch. 273, § 1; 2011, ch; 2013, ch. 291, § 14.

39-06-08. Application of minors.

The application of any minor for an operator’s license must be signed and verified before an individual authorized to administer oaths or the director, by the father, mother, or legal guardian, or if there is not a parent or legal guardian, then by another responsible adult who is willing to assume the obligation imposed under this chapter upon an individual signing the application of a minor. If the father, mother, or legal guardian is unable to appear, a father, mother, or legal guardian may designate, through a notarized document, an individual temporarily authorized to sign the application.

Source:

S.L. 1955, ch. 251, § 8; R.C. 1943, 1957 Supp., § 39-0608; S.L. 1973, ch. 120, § 36; 1979, ch. 405, § 4; 1997, ch. 332, § 3; 2005, ch. 329, § 1; 2013, ch. 291, § 15; 2017, ch. 263, § 1, effective August 1, 2017.

Collateral References.

State’s liability to one injured by improperly licensed driver, 41 A.L.R.4th 111.

39-06-09. Liability for negligence of minor — General.

  1. Subject to subsection 2, any negligence of a minor when driving a motor vehicle on a highway must be imputed to the individual who signed the application of the minor for an operator’s license, or upon the father, mother, or legal guardian if signing authority has been temporarily transferred under section 39-06-08. This individual is jointly and severally liable with the minor for damages caused by the negligence, except as provided in section 39-06-10.
  2. The negligence of a minor under subsection 1 may not be imputed to the individual who signed the application of the minor for an operator’s license, or upon the father, mother, or legal guardian if signing authority temporarily has been transferred under section 39-06-08 for any injury or damage to that individual which was caused by the minor’s negligence.

Source:

S.L. 1955, ch. 251, § 9; R.C. 1943, 1957 Supp., § 39-0609; S.L. 1973, ch. 120, § 37; 2013, ch. 291, § 16; 2017, ch. 263, § 2, effective August 1, 2017; 2021, ch. 286, § 1, effective April 13, 2021.

Cross-References.

Liability of parent or child for acts of one another, see § 14-09-21.

Notes to Decisions

Guest Statute.

Section did not work implied partial repeal of guest statute. Rodgers v. Freborg, 240 N.W.2d 63 (N.D. 1976), cause of action arose prior to Johnson v. Hassett, 217 N.W.2d 771 (N.D. 1974), holding guest statute unconstitutional.

No New Cause of Action Created.

Statute does not create a new cause of action against the sponsor of a minor guilty of “any negligence”; it merely imputes to sponsor any liability minor may otherwise incur. Rodgers v. Freborg, 240 N.W.2d 63, 1976 N.D. LEXIS 202 (N.D. 1976).

Decisions under Prior Law

Imputation of Negligence.

This section requires the imputation of all negligence, not solely financial liability, to the parent or guardian who signs a minor’s application for an instructional permit. Anderson v. Anderson, 1999 ND 57, 591 N.W.2d 138, 1999 N.D. LEXIS 66 (N.D. 1999).

Mother who was injured while riding in vehicle driven by her minor son who had instructional driver’s permit was barred from recovery from the son. Anderson v. Anderson, 1999 ND 57, 591 N.W.2d 138, 1999 N.D. LEXIS 66 (N.D. 1999).

Collateral References.

Construction and effect of statutes which make parent, custodian or other person signing minor’s application for vehicle operator’s license liable for licensee’s negligence or willful misconduct, 45 A.L.R.4th 87.

Negligent entrustment of motor vehicle to unlicensed driver, 55 A.L.R.4th 1100.

Law Reviews.

Case Comment: Insurance — Automobile Insurance: The North Dakota Supreme Court Rules that a Head of Household’s Liability Under the Family Car Doctrine is Not Necessarily Covered by His Automobile Insurance Policy (McPhee v. Tufty, 2001 ND 51, 623 N.W.2d 390 (2001)), 78 N.D. L. Rev. 479 (2002).

39-06-10. Liability for negligence of minor — Proof of financial responsibility.

If a minor provides proof of financial responsibility for the operation of a motor vehicle, then the director may accept the application of the minor.

Source:

S.L. 1955, ch. 251, § 10; R.C. 1943, 1957 Supp., § 39-0610; S.L. 1973, ch. 120, § 38; 1987, ch. 458, § 6; 2013, ch. 291, § 17.

39-06-11. Cancellation of minor’s license or permit upon request.

An individual who has signed the application of a minor for a license may file with the director a verified written request to cancel the operator’s license of the minor. Upon receipt of the request, the director shall cancel the operator’s license of the minor and the individual who signed the application of the minor is relieved from the liability imposed under this chapter by reason of having signed the application on account of any subsequent negligence of the minor in operating a motor vehicle.

Source:

S.L. 1955, ch. 251, § 11; R.C. 1943, 1957 Supp., § 39-0611; 2013, ch. 291, § 18.

39-06-12. Cancellation of an operator’s license of a minor upon death of applicant.

The director upon receipt of satisfactory evidence of the death of the individual who signed the application of a minor for an operator’s license shall cancel the operator’s license and may not issue a new license until a new application is made by the minor.

Source:

S.L. 1955, ch. 251, § 12; R.C. 1943, 1957 Supp., § 39-0612; 2013, ch. 291, § 19.

39-06-13. Examination of applicants.

  1. Unless otherwise provided in this chapter, the director shall examine every applicant for an operator’s license. The examination must include a test of the applicant’s eyesight; ability to read and understand highway signs regulating, warning, and directing traffic; and knowledge of the traffic laws of this state. The director shall make any written portion of the examination, except writing on illustrations of signs, available to an applicant in any widely practiced language. The director may waive the written portion of the examination for an applicant who has successfully passed a written examination in another state and has an operator’s license that is not or in the process of being revoked, suspended, or canceled.
  2. The director shall establish a process to administer the written portion of an examination for an operator’s license through an online electronic medium. The director shall charge an applicant a fee of ten dollars to access the online written examination. The online examination must:
    1. Use personal questions about the applicant before the examination which the applicant is required to answer during the examination, to strengthen test security to deter fraud; and
    2. Require the applicant’s parent or legal guardian to certify to the department the parent or legal guardian monitored the applicant during the online written examination, before issuance by the department of a class D instruction permit to an applicant who has passed the online examination.
  3. The examination must include an actual demonstration of ability to exercise ordinary and reasonable control in the operation of a motor vehicle unless waived for an applicant who has successfully passed an actual ability test in this or another state conducted by a state licensing authority or by a commercial driver training school meeting the driver education requirements prescribed by the director under chapter 39-25. A minor may operate a motor vehicle no matter how owned for the actual ability test.
  4. In lieu of an eyesight test, the applicant may provide a statement of examination from a licensed physician or an optometrist stating the corrected and uncorrected vision of the applicant, if the examination was within six months of the application.
  5. The director may require any other physical or mental examination.

Source:

S.L. 1955, ch. 251, § 13; R.C. 1943, 1957 Supp., § 39-0613; S.L. 1977, ch. 345, § 1; 1981, ch. 384, § 3; 1987, ch. 459, § 1; 1989, ch. 460, § 4; 1995, ch. 371, § 1; 1997, ch. 333, § 1; 2003, ch. 312, § 1; 2013, ch. 291, § 20; 2015, ch. 275, § 2, effective August 1, 2015; 2021, ch. 287, § 1, effective July 1, 2021.

Effective Date.

The 2015 amendment of this section by section 2 of chapter 275, S.L. 2015 became effective August 1, 2015.

Cross-References.

Re-examination when required by court, see § 39-06-34.1.

39-06-13.1. Fee for examination of applicants.

  1. An applicant for an operator’s license who is required to be tested to determine the applicant’s knowledge of highway signs, regulating, warning, and directing traffic and of the traffic laws of this state shall pay a fee listed in section 39-06-49.
  2. An applicant for an operator’s license who is required to be tested to demonstrate the applicant’s ability to exercise ordinary and reasonable control in the operation of a motor vehicle shall pay a fee listed in section 39-06-49.

Source:

S.L. 1987, ch. 440, § 3; 2013, ch. 291, § 21.

39-06-14. Licenses issued to operators — General — Classified operator’s license.

  1. Upon the payment of the application fee listed in section 39-06-49, the director shall issue to every qualified applicant an operator’s license. An application for an operator’s license must be made on a form furnished by the director. The operator’s license must bear the full name, date of birth, residence address, and a brief description of the licensee.
  2. The license must bear either a facsimile of the signature of the licensee or a space upon which the licensee shall write the licensee’s usual signature. An operator’s license is not valid unless signed by the licensee with the licensee’s usual signature. For purposes of verification, the director may require the licensee to write the licensee’s signature in the presence of the director.
  3. The operator’s license must bear a distinguishing number assigned to the licensee. The director may not issue a distinguishing number that is, contains, can be converted to, or is an encrypted version of the applicant’s social security number.
  4. The operator’s license must bear a color photograph of the licensee. The director may adopt rules relating to the manner in which photographs are to be obtained and placed on an operator’s license. The photograph may be produced by digital imaging or other electronic means and is not a public record. If the licensee is under the age of eighteen, the photograph must be against a color border or background that is different from the color used for other licensees. If the licensee is at least the age of eighteen and is under the age of twenty-one, the photograph must be against a color border or background that is different from the color used for other licensees.
  5. The director shall issue an operator’s license to any resident who at the time of application is not a citizen of the United States and who fulfills the requirements of this section. The license must be designed in a manner to distinguish the license clearly from a similar license issued to a citizen of the United States and resident of this state. The license issued under this subsection may be replaced with a card issued to a citizen of this country and resident of this state only when proof of United States citizenship is provided by the individual and the replacement fee listed in section 39-06-49 is paid.
  6. Upon request and with adequate documentation, the director shall place an indicator on the face of an operator’s license of a veteran. The veteran may make the request through the department of veterans’ affairs.
  7. An applicant holding a valid operator’s license issued by this state and making application for renewal must be issued a class D license without being subjected to a written or actual ability examination. The director shall issue to any other applicant applying for issuance of an operator’s license a classified license after a successful examination in the type of motor vehicle or combination of vehicles for the particular class of license and the particular license authorizes the holder to drive the particular class of vehicles as designated in section 39-06.2-09 or this chapter.
  8. An individual with a class D license may operate:
    1. A single vehicle with a gross vehicle weight rating of twenty-six thousand pounds [11793.40 kilograms] or less or this vehicle towing a vehicle with a gross vehicle weight rating not in excess of ten thousand pounds [4535.92 kilograms] or a combination of vehicles with a gross combination weight or a gross combination weight rating in excess of twenty-six thousand pounds [11793.40 kilograms] if the individual is eighteen years of age or older, unless the individual is driving a farm vehicle and meets the requirements of subdivision e of subsection 7 of this section and subsection 3 of section 39-06.2-06.
    2. A farm tractor towing another vehicle having a gross weight in excess of ten thousand pounds [4535.92 kilograms].
    3. A truck towing a trailer in excess of ten thousand pounds [4535.92 kilograms] if the combined weight does not exceed twenty-six thousand pounds [11793.40 kilograms] gross combination weight rating.
    4. A house car or a vehicle towing a travel trailer being used solely for personal purposes.
    5. A two-axle or tandem-axle motor vehicle, a triple-axle motor vehicle, and a truck or truck tractor towing a trailer, semitrailer, or farm trailer if the individual is exempted from a commercial driver’s license under subsection 3 of section 39-06.2-06, except the individual may not operate a double trailer or triple trailer and an individual under eighteen years of age may not operate a truck tractor or a bus designed to carry sixteen or more passengers, including the driver.
  9. Any holder of a classified license who drives a motor vehicle otherwise than as permitted by the class of license issued to the holder is deemed to be driving a motor vehicle without being duly licensed. The holder of a classified license who desires to obtain a different class license must exchange or renew the license. The director may adopt rules on renewals or exchanges for the proper administration of this chapter.

Source:

S.L. 1955, ch. 251, § 14; 1957, ch. 261, § 1; R.C. 1943, 1957 Supp., § 39-0614; S.L. 1967, ch. 292, § 4; 1967, ch. 306, § 1; 1969, ch. 340, § 2; 1975, ch. 334, § 2; 1975, ch. 335, § 1; 1977, ch. 327, § 6; 1977, ch. 344, § 2; 1977, ch. 345, § 2; 1977, ch. 346, § 1; 1979, ch. 405, § 5; 1979, ch. 409, § 6; 1979, ch. 442, § 6; 1981, ch. 384, § 8; 1983, ch. 414, §§ 2, 3; 1985, ch. 426, § 1; 1985, ch. 427, § 1; 1987, ch. 440, § 4; 1987, ch. 457, § 2; 1989, ch. 303, § 4; 1989, ch. 460, § 5; 1989, ch. 461, § 1; 1995, ch. 372, § 1; 1995, ch. 373, § 1; 1995, ch. 374, § 1; 1997, ch. 332, § 4; 1999, ch. 330, § 5; 1999, ch. 339, § 2; 2001, ch. 339, § 1; 2003, ch. 313, § 1; 2003, ch. 314, § 1; 2007, ch. 237, § 6; 2009, ch. 330, § 2; 2009, ch. 345, § 1; 2011, ch. 274, § 1; 2011, ch. 271, § 8; 2011, ch. 275, § 1; 2013, ch. 291, § 22; 2017, ch. 152, § 12, effective July 1, 2017.

Collateral References.

State’s liability to one injured by improperly licensed driver, 41 A.L.R.4th 111.

39-06-14.1. Motorcycle operator’s licenses and motorized bicycles.

  1. A resident of this state who is at least fourteen years of age may apply to the director for a class M learner’s permit. An individual holding a class M learner’s permit for the operation of a motorcycle may not operate the motorcycle during the hours when the use of headlights are required under section 39-21-01 or carry or transport any passenger. Any learner’s permit may be renewed or a new permit issued for an additional period.
  2. An individual with a class M license may operate any motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding motorized bicycles and tractors.
    1. The holder of a class A, B, C, or D license may receive a class M endorsement upon successful completion of an examination. The director may waive the skill portion of the examination if the applicant has successfully completed a motorcycle safety course approved by the director.
    2. An applicant sixteen years of age and older, who does not hold a current valid operator’s license, may be issued a class M learner’s permit after successful completion of a written examination. The class M license must be issued after the applicant has successfully completed a driver’s examination. The director may waive the skill portion of the examination if the applicant has successfully completed a motorcycle safety course approved by the director.
    3. Applicants fourteen or fifteen years of age may be issued a motorcycle learner’s permit if the applicant is enrolled in or has completed an approved motorcycle safety course. Applicants for a motorcycle operator’s license who are under sixteen years of age must hold an initial learner’s permit for at least two months before applying for a class M operator’s license, must have completed an approved motorcycle safety course, and must hold a valid motorcycle learner’s permit at the time of application. The director may waive the skill portion of the examination if the applicant has successfully completed a motorcycle safety course approved by the director. Any person under sixteen years of age who holds a permit or license may not operate a motorcycle powered with an engine in excess of five hundred ten cubic centimeters displacement. Evidence that the applicant has satisfactorily completed a motorcycle safety course which meets the minimum requirements of the motorcycle safety foundation must accompany the application.
  3. The director may issue a motorized bicycle operator’s permit to an applicant who is at least fourteen years of age. To obtain a permit, the applicant shall pay a fee as listed in section 39-06-49 and take a written examination of the applicant’s knowledge of traffic laws and general rules of the road. If the applicant passes the written examination and the director is satisfied that the applicant has adequate eyesight, the director may issue the applicant a motorized bicycle operator’s permit, even if the applicant does not have an operator’s license. The permit expires in the same manner as an operator’s license. A person who has an operator’s license, a temporary permit, an instruction permit, or a motorcycle permit is not required to obtain a motorized bicycle operator’s permit.

Source:

S.L. 2013, ch. 291, § 23; 2019, ch. 316, § 1, effective August 1, 2019.

39-06-14.2. Driver license central identity management.

  1. The director shall provide central identity management for all state agencies for citizens who possess a nondriver photo identification card or driver’s license utilizing driver record data.
  2. The director will provide access for identity verification. The director may not allow entities to transfer or collect identification data from the driver’s license database, but shall create processes and procedures that enable verification of data without direct release of the data, except as authorized in chapter 39-33.
  3. The director shall develop procedures to comply with this section.

Source:

S.L. 2017, ch. 256, § 5, effective August 1, 2017.

39-06-14.3. Electronic operator’s license.

  1. The department shall implement a computerized licensing system that allows a licensed motor vehicle operator to provide electronic proof of valid licensing on an electronic communications device.
  2. The electronic proof of valid licensing may be used:
    1. When being stopped by a law enforcement officer for the purpose of enforcing or investigating the possible violation of an ordinance or state law; or
    2. For identification purposes.
  3. The electronic operator’s license must be designed so that there is no need for the credential holder to relinquish possession of the device in which the electronic credential system is installed in order to present the credential, or for the individual to whom the credential is presented to access the verification system to confirm the validity of the credential.
  4. The computerized licensing system may not transmit or transfer any information contained on an electronic operator’s license without authorization from the licensed motor vehicle operator.
  5. In case of a discrepancy between a physical and electronic credential, the electronic credential takes priority and is considered to provide the current information.
  6. The electronic credential and verification systems must be designed to protect the credential holder’s privacy, including the use of privacy enhancing technology or other appropriate methods. If the department enters an agreement with a third-party electronic credential system provider, the agreement must require the third-party electronic credential system provider to take appropriate measures to protect the credential holder’s privacy.
  7. In addition to the fees required by section 39-06-49 for an operator’s license, a substitute operator’s license, and an operator’s license renewal:
    1. An initial fee of five dollars is required from a licensed motor vehicle operator seeking to possess an electronic operator’s license; and
    2. The fee for an electronic operator’s license renewal is five dollars.
  8. The director may adopt rules necessary for the effective implementation of an electronic operator’s licensing system.

Source:

S.L. 2021, ch. 288, § 1, effective July 1, 2021.

39-06-15. Commissioner may appoint agents to issue licenses — Fees. [Repealed]

Repealed by S.L. 1967, ch. 292, § 21.

39-06-16. License to be carried and exhibited on demand.

An individual licensed to operate a motor vehicle shall have a physical or electronic operator’s license in the individual’s immediate possession at all times when operating a motor vehicle and shall physically surrender or electronically provide an operator’s license, upon demand of any court, police officer, or a field deputy or inspector of the department. However, an individual charged with violating this section may not be convicted or assessed any court costs if the individual produces within fourteen days to the office of the prosecutor where the matter is pending, a valid operator’s license issued to that individual that is not under suspension, revocation, or cancellation at the time of the individual’s arrest.

Source:

S.L. 1955, ch. 251, § 15; R.C. 1943, 1957 Supp., § 39-0616; S.L. 1961, ch. 258, § 1; 1969, ch. 340, § 3; 1981, ch. 320, § 93; 1991, ch. 326, § 150; 2003, ch. 315, § 1; 2013, ch. 291, § 24; 2021, ch. 283, § 4, effective August 1, 2021; 2021, ch. 288, § 2, effective July 1, 2021.

Note.

Section 39-06-16 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 2 of Chapter 288, Session Laws 2021, House Bill 1072; and Section 4 of Chapter 283, Session Laws 2021, House Bill 1502.

Notes to Decisions

Discretionary Stop.

This section does not authorize a discretionary stop of a vehicle, without reason, to check an operator’s license. State v. Langseth, 492 N.W.2d 298, 1992 N.D. LEXIS 206 (N.D. 1992).

Collateral References.

Validity and construction of statute making it a criminal offense for the operator of a motor vehicle not to carry or display his operator’s license or the vehicle registration certificate, 6 A.L.R.3d 506.

Law Reviews.

Article: Constitutional Roadkill in the Courts: Looking To the Legislature To Protect North Dakota Motorists Against Almost Unlimited Police Power To Stop and Investigate Crime, see 86 N.D. L. Rev. 1 (2010).

39-06-17. Restricted licenses — Penalty for violation.

  1. Upon issuing an operator’s license or a temporary restricted operator’s license under section 39-06.1-11, the director may impose restrictions suitable to a licensee’s driving ability with respect to the type of motor vehicle, special mechanical control devices required on a motor vehicle that the licensee may operate, or any other restrictions applicable to the licensee as the director may determine to be appropriate to assure the safe operation of a motor vehicle by the licensee. The director may either issue a special restricted class D license or may state the restrictions upon the usual license form. In the same manner, the director shall restrict licenses under section 39-16.1-09.
  2. The director may issue a restricted class D license to operate the parent’s, guardian’s, grandparent’s, sibling’s, aunt’s, or uncle’s automobile to a minor, who is at least fifteen years of age, and otherwise qualified, upon the written recommendation of the parent or guardian. A minor may operate a motor vehicle that is not the parent’s or guardian’s to take the actual ability test. The parent, guardian, grandparent, sibling, aunt, or uncle at all times is responsible for any and all damages growing out of the negligent operation of a motor vehicle by a minor. A restricted class D license may not be issued to a minor unless the minor, accompanied by the parent or guardian, appears in person and satisfies the director that:
    1. The minor is at least fifteen years of age;
    2. The minor is qualified to operate an automobile safely;
    3. It is necessary for the child to drive the parent’s, guardian’s, grandparent’s, sibling’s, aunt’s, or uncle’s automobile without being accompanied by an adult;
    4. The minor has successfully completed an approved driver’s education course that includes a course of classroom instruction and a course of behind-the-wheel instruction acceptable to the director or has successfully completed a course at an approved commercial driver training school; and
    5. The minor has accumulated a minimum of fifty hours of supervised, behind-the-wheel driving experience in various driving conditions and situations that include night driving; driving on gravel, dirt, or aggregate surface road; driving in both rural and urban conditions; and winter driving conditions.
  3. The provisions of subsection 2 do not authorize a minor to drive a commercial truck, motorbus, or taxicab except the holder of a restricted class D license may drive a farm motor vehicle having a gross weight of fifty thousand pounds [22679.62 kilograms] while used to transport agricultural products, farm machinery, or farm supplies to or from a farm when so operated within one hundred fifty miles [241.40 kilometers] of the driver’s farm.
  4. A minor with a restricted class D license issued under subsection 2 may operate the type or class of motor vehicle specified on the restricted license under the following conditions:
    1. A restricted licenseholder must be in possession of the license while operating the motor vehicle.
    2. An individual holding a restricted class D license driving a motor vehicle may not carry more passengers than the vehicle manufacturer’s suggested passenger capacity.
    3. An individual holding a restricted class D license driving a motor vehicle may not operate an electronic communication device to talk, compose, read, or send an electronic message while operating a motor vehicle that is in motion unless the sole purpose of operating the device is to obtain emergency assistance, to prevent a crime about to be committed, or in the reasonable belief that an individual’s life or safety is in danger.
    4. An individual holding a restricted class D license may not operate a motor vehicle between the later of sunset or nine p.m. and five a.m. unless a parent, legal guardian, or an individual eighteen years of age or older is in the front seat of the motor vehicle or the motor vehicle is being driven directly to or from work, an official school activity, or a religious activity.
  5. Upon receiving satisfactory evidence of any violation of the restrictions of a license, the director may suspend or revoke the license but the licensee is entitled to a hearing as upon a suspension or revocation under this chapter.
  6. It is a class B misdemeanor for an individual to operate a motor vehicle in any manner in violation of the restrictions imposed under this section except for the restrictions in subsection 4.
  7. If a temporary restricted license is issued under section 39-06.1-11 and the underlying suspension was imposed for a violation of section 39-08-01 or equivalent ordinance, or is governed by chapter 39-20, punishment is as provided in subsection 2 of section 39-06-42. Upon receiving notice of the conviction the director shall revoke, without opportunity for hearing, the licensee’s temporary restricted license and shall extend the underlying suspension for a like period of not more than one year.
  8. If the conviction referred to in this section is reversed by an appellate court, the director shall restore the individual to the status held by the individual before the conviction, including restoration of driving privileges if appropriate.

Source:

S.L. 1955, ch. 251, § 16; R.C. 1943, 1957 Supp., § 39-0617; S.L. 1969, ch. 340, § 4; 1973, ch. 297, § 1; 1973, ch. 298, § 1; 1973, ch. 301, § 19; 1975, ch. 106, § 429; 1975, ch. 339, § 4; 1983, ch. 415, § 5; 1987, ch. 458, § 7; 1989, ch. 461, § 2; 1991, ch. 411, § 1; 1999, ch. 341, § 2; 2007, ch. 324, § 1; 2011, ch. 276, § 1; 2011, ch. 272, § 4; 2013, ch. 291, § 25; 2013, ch. 292, § 1.

Notes to Decisions

License Issued Contrary to Law.

Defendant was properly convicted for driving a motor vehicle in violation of terms of his temporary restricted license where he applied for, received, accepted and used temporary restricted license, notwithstanding that he was statutorily ineligible, pursuant to N.D.C.C. § 39-06.1-11, to receive such a license because he had twice been convicted of DUI within statutory proscribed time period. State v. Patterson, 355 N.W.2d 810, 1984 N.D. LEXIS 397 (N.D. 1984).

Collateral References.

Physical disease or defect, denial, suspension or cancellation of driver’s license because of, 38 A.L.R.3d 452.

Necessity and sufficiency of notice and hearing before revocation or suspension of driver’s license, 60 A.L.R.3d 350.

39-06-18. Substitute operator’s license.

If an operator’s license or nondriver photo identification card issued under this chapter is lost, mutilated, or destroyed, or contains erroneous information due to a change in name, address, or for any other reason, the individual to whom the operator’s license or identification card was issued may obtain a substitute, by providing documentation that confirms to the satisfaction of the director the true identity, date of birth, and legal presence of the applicant and provide a social security card or other satisfactory evidence of a social security number and proof of residence address, if not previously completed or if there are changes to the information already on file, and upon payment of a fee listed in section 39-06-49.

Source:

S.L. 1955, ch. 251, § 17; R.C. 1943, 1957 Supp., § 39-0618; S.L. 1963, ch. 277, § 4; 1981, ch. 384, § 4; 1987, ch. 440, § 5; 1997, ch. 332, § 5; 2013, ch. 291, § 26; 2017, ch. 256, § 6, effective August 1, 2017.

39-06-19. Expiration of license — Renewal.

  1. Every operator's license issued under this chapter or chapter 39-06.2 expires and is renewed according to this section.
  2. The expiration date of a noncommercial operator's license for an individual whose birth occurred in a year ending in an odd numeral is twelve midnight on the anniversary of the birthday in the third subsequent year ending in an odd numeral, except for an individual who, at the time of renewal, is seventy-eight years of age or older is twelve midnight on the anniversary of the birthday in the second subsequent year ending in an odd numeral. The expiration date of a noncommercial operator's license for an individual whose birth occurred in a year ending in an even numeral is twelve midnight on the anniversary of the birthday in the third subsequent year ending in an even numeral, except for an individual who, at the time of renewal, is seventy-eight years of age or older is twelve midnight on the anniversary of the birthday in the second subsequent year ending in an even numeral.
  3. The expiration date of a commercial operator's license for an individual whose birth occurred in a year ending in an odd numeral is twelve midnight on the anniversary of the birthday in the second subsequent year ending in an odd numeral. The expiration date of a commercial operator's license for an individual whose birth occurred in a year ending in an even numeral is twelve midnight on the anniversary of the birthday in the second subsequent year ending in an even numeral.
  4. An individual who has a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the United States, a pending application for asylum in the United States, a pending or approved application for temporary protected status in the United States, approved deferred action status, or a pending application for adjustment of status to that of an alien lawfully admitted for permanent residence or conditional permanent residence status in the United States will be issued a temporary operator's license or nondriver photo identification card. The temporary operator's license or identification card is valid only during the period of time of the applicant's authorized stay in the United States or, if there is no definite end to the period of authorized stay, a period of one year. The license or card may be renewed only upon presentation of valid documentary evidence that the status has been extended.
  5. An applicant for renewal must present the application with the fee for renewal of license to the director not before ten months prior to the expiration date of the operator's license. The director may require an examination of an applicant as upon an original application. The director may require an applicant for renewal or a substitute to provide documentation that confirms to the satisfaction of the director the true identity, date of birth, and legal presence of the applicant and provide a social security card or other satisfactory evidence of a social security number and proof of residence address, if not previously completed or if there are changes to the information already on file. The director may not issue a distinguishing number that is, contains, can be converted to, or is an encrypted version of the applicant's social security number.
  6. The director may not renew an operator's license if the license has been suspended under section 14-08.1-07. Upon the recommendation of the court, the director may issue a temporary permit to the licensee under section 39-06.1-11 if the temporary permit is necessary for the licensee to work and the court has determined the licensee is making a good-faith effort to comply with the child support order
  7. An applicant for renewal of an operator's license must provide a certificate of examination from the driver licensing or examining authorities or a statement as to the corrected and uncorrected vision of the applicant from a licensed physician or an optometrist, except as required under subsection 9. The director shall provide visual examination equipment at each location where a license may be renewed.
  8. An individual submitting an application and the fee for renewal of license one year or more after the expiration of a license, except an applicant whose military service has terminated less than thirty days prior to the application, must be treated as an initial applicant.
  9. A noncommercial applicant may apply by mail or electronically for renewal of a license during every other renewal cycle, except as otherwise provided by subsection 10. The director may use vision information provided by the applicant to meet vision requirements for applicants under seventy years of age and adopt procedures necessary to implement this subsection.
  10. A noncommercial applicant for an operator's license may not renew by mail or electronically if the applicant is seeking a new photo or changes to the information on the face of the physical operator's license.

Source:

S.L. 1955, ch. 251, § 18; R.C. 1943, 1957 Supp., § 39-0619; S.L. 1963, ch. 278, § 3; 1967, ch. 292, § 5; 1969, ch. 341, § 1; 1975, ch. 334, § 1; 1981, ch. 384, § 5; 1983, ch. 82, § 73; 1983, ch. 429, § 3; 1985, ch. 428, § 1; 1987, ch. 440, § 6; 1987, ch. 457, § 3; 1995, ch. 154, § 2; 1999, ch. 339, § 3; 2001, ch. 37, § 5; 2007, ch. 323, § 2; 2009, ch. 328, § 2; 2009, ch. 329, § 4; 2011, ch. 274, § 2; 2013, ch. 291, § 27; 2017, ch. 256, § 7, effective August 1, 2017; 2017, ch. 264, § 1, effective August 1, 2017; 2021, ch. 287, § 2, effective July 1, 2021; 2021, ch. 289, § 1, effective August 1, 2021.

Note.

Section 39-06-19 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 289, Session Laws 2021, House Bill 1102; and Section 2 of Chapter 287, Session Laws 2021, House Bill 1168.

Section 39-06-19 was amended 2 times by the 2017 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 264, Session Laws 2017, House Bill 1299; and Section 7 of Chapter 256, Session Laws 2017, House Bill 1128.

Decisions under Prior Law

Incomplete Application for Renewal of License.

N.D.C.C. § 39-06-19(3) did not relieve an applicant of the duty of providing a social security number on his application; therefore, the driver did not present the North Dakota Department of Transportation with a complete application for renewal of his driver’s license containing his social security number, and did not demonstrate a clear legal right to performance of the act sought to be compelled by his petition for a writ of mandamus. Kouba v. Hoeven, 2004 ND 185, 687 N.W.2d 491, 2004 N.D. LEXIS 312 (N.D. 2004).

39-06-19.1. Extended term of license held by members of the armed forces — Limitations.

A valid operator’s license issued under this chapter to a resident of this state who enters or is in the United States armed forces and serving on active duty continues in full force and effect so long as the active service continues and the licensee remains absent from this state, and for not to exceed thirty days following the date on which the holder of this license is honorably separated from this service or returns to this state, unless the license is sooner suspended, canceled, or revoked for cause. The license is valid only if in the immediate possession of the licensee while driving and the licensee has the licensee’s discharge or separation papers, if the licensee has been discharged or separated from the service, or has documentation authorizing the licensee to be absent from the licensee’s duty station in the licensee’s immediate possession.

Source:

S.L. 1973, ch. 299, § 1; 1975, ch. 339, § 5; 2013, ch. 291, § 28.

Cross-References.

Exemption of license requirements for members of armed forces stationed in state, see § 39-06-02.

39-06-19.2. Renewal of license held by out-of-state individual.

The director may renew an operator’s license issued to an individual who is a resident of this state or to a spouse who is a resident of this state, if the individual or spouse is out of state as a result of the employment of the individual or the other spouse with a governmental entity or a business organization, including the United States armed forces or foreign service. The director shall develop procedures and requirements for a renewal under this section.

Source:

S.L. 2013, ch. 293, § 1.

39-06-20. Notice of change of address or name.

If an individual after applying for or receiving an operator’s license or identification card moves from the address named on the license or identification card, or if the name is changed by marriage or otherwise, that individual within ten days after moving or the name change shall notify the director in writing or in person of that individual’s old and new addresses or of the individual’s former and new names and of the number of any operator’s license or identification card then held by that person. An individual may obtain a corrected operator’s license or identification card for address only changes, but must obtain a new operator’s license or identification card for a name change, by making an application as provided for in section 39-06-18. The department may change the address based on information received from any authorized address correction service of the United States postal service. The department may also develop procedures for receiving notification of address changes by electronic means.

Source:

S.L. 1955, ch. 251, § 19; R.C. 1943, 1957 Supp., § 39-0620; S.L. 1963, ch. 277, § 5; 1979, ch. 416, § 1; 1993, ch. 375, § 4; 1997, ch. 332, § 6; 2001, ch. 340, § 2; 2013, ch. 291, § 29; 2017, ch. 256, § 8, effective August 1, 2017.

39-06-21. Filing application records.

The director shall file and maintain each application for a license with suitable indexes containing:

  1. All applications denied and on each denied application note the reason for the denial;
  2. All applications granted; and
  3. The name of every licensee whose operator’s license has been suspended, revoked, canceled, or restricted by the department and after each name state the reasons for such actions.

Source:

S.L. 1955, ch. 251, § 20; R.C. 1943, 1957 Supp., § 39-0621; S.L. 1977, ch. 347, § 1; 1979, ch. 416, § 2; 1991, ch. 394, § 2; 2013, ch. 291, § 30.

39-06-22. Driving records of licensees.

The director shall file all accident reports and abstracts of court records of convictions received by the director under the laws of this state and maintain convenient records or make suitable notations in order that each record of each licensee showing the convictions of the licensee and the traffic accidents in which the licensee has been involved is readily ascertainable and available for the consideration of the director.

Source:

S.L. 1955, ch. 251, § 21; R.C. 1943, 1957 Supp., § 39-0622; S.L. 1977, ch. 347, § 2; 1991, ch. 394, § 3; 2013, ch. 291, § 31.

Notes to Decisions

Regularly Kept Records.

Department of transportation failed to cite any persuasive support for its assertion that documents were “regularly kept records of the director” merely because they had been placed in a driver’s file; other documents statutorily recognized as “regularly kept records” are required to bear far greater indicia of authentication and reliability. There must be a prima facie showing, in the form of a certification, that the document is what it purports to be. Peterson v. North Dakota Dep't of Transp., 518 N.W.2d 690, 1994 N.D. LEXIS 141 (N.D. 1994).

Collateral References.

Inspection of motor vehicle records, right as to, 84 A.L.R.2d 1261.

39-06-23. Definition of suspension, revocation, and cancellation. [Repealed]

Repealed by S.L. 2013, ch. 291, § 62.

Note.

See now N.D.C.C. § 39-01-01.

39-06-24. Authority to cancel licenses.

  1. The director shall cancel any operator’s license or nondriver photo identification card upon determining that the individual is not entitled to the issuance of the document or that the individual failed to give the required or correct information on the application or the fee was invalid. Invalid fees include being in the form of an insufficient fund or no-account check or a credit or debit card in which the transaction was canceled by the applicant before the department received correct payment. The making of a false statement in any application for an operator’s license or nondriver photo identification card, concerning the applicant’s age or the prior loss of driving privileges through a cancellation, suspension, revocation, or similar sanction in any state, is grounds for the director to cancel any document or privilege issued on the basis of the application.
  2. Upon cancellation, the holder shall surrender the nondriver photo identification card to the director or any police officer may take custody of the card.

Source:

S.L. 1955, ch. 251, § 23; R.C. 1943, 1957 Supp., § 39-0624; S.L. 1967, ch. 292, § 7; 1973, ch. 300, § 1; 1987, ch. 458, § 8; 2005, ch. 329, § 2; 2011, ch. 271, § 9; 2013, ch. 291, § 32.

39-06-25. Suspending privileges of nonresidents.

The privilege of driving a motor vehicle on the highways of this state given to a nonresident is subject to suspension or revocation by the director in like manner and for like cause as an operator’s license issued in this title may be suspended or revoked.

Source:

S.L. 1955, ch. 251, § 24; R.C. 1943, 1957 Supp., § 39-0625; 2013, ch. 291, § 33.

39-06-26. Reporting convictions, suspensions, or revocations of nonresidents.

  1. Upon receiving a record of the conviction or adjudication in this state of a nonresident driver of a motor vehicle of any offense under the motor vehicle laws of this state, or an equivalent ordinance, the director may notify the licensing authority in the state in which the nonresident resides or is licensed.
  2. If a nonresident’s operating privilege is suspended or revoked under the law of this state, the director shall notify the licensing authority in the state in which the nonresident resides or is licensed.

Source:

S.L. 1955, ch. 251, § 25; R.C. 1943, 1957 Supp., § 39-0626; S.L. 1963, ch. 277, § 6; 1979, ch. 416, § 3; 2013, ch. 291, § 34.

39-06-27. Suspending licenses upon conviction, suspension, or revocation in another jurisdiction.

  1. The director may suspend or revoke the operator’s license of any resident of this state or the privilege of a nonresident to operate a motor vehicle in this state upon receiving notice of the conviction of that individual in a tribal court or in another state of an offense, which if committed in this state would be grounds for the suspension or revocation of an operator’s license of an operator. The director may act on a report of a conviction in tribal court received from any tribal law enforcement agency. This section may not be construed as authorizing the assessment of points against a resident’s driving record in accordance with chapter 39-06.1, except upon conviction of a resident driver for a criminal offense in a tribal court or in another state which is equivalent to one of those offenses defined in section 39-06.1-05. A suspension or revocation may not be imposed for convictions for driving under suspension or revocation on an Indian reservation or in another state if a valid operator’s license from this state was in effect at the time of the violation. For purposes of this section, originals, photostatic copies, and electronic transmissions of the records of the driver’s licensing or other authority of the other jurisdiction are sufficient evidence even if not certified copies.
  2. Upon receipt of a certification that the operating privileges of a resident of this state have been suspended or revoked on an Indian reservation or in any other state under a law providing for the suspension or revocation for failure to deposit security for the payment of judgments arising out of a motor vehicle accident if under circumstances that would require the director to suspend a nonresident’s operating privileges had the accident occurred in this state, the director shall suspend the license of the resident if the resident was the driver of a motor vehicle involved in the accident. The suspension continues until the resident furnishes evidence satisfactory to the director of the resident’s compliance with the laws of the Indian reservation or the other state relating to the deposit of security or payment of a judgment arising out of a motor vehicle accident, to the extent that compliance would be required if the accident had occurred in this state.

Source:

S.L. 1955, ch. 251, § 26; R.C. 1943, 1957 Supp., § 39-0627; S.L. 1963, ch. 277, § 7; 1975, ch. 339, § 6; 1977, ch. 348, § 1; 1981, ch. 385, § 1; 1995, ch. 372, § 2; 1999, ch. 340, § 4; 2013, ch. 291, § 35.

Notes to Decisions

Conviction.

The proper interpretation of “conviction,” for purposes of this section, is a final order or judgment of conviction by the supreme court of a sister state or any lower court of that state having jurisdiction, provided that no appeal is pending and the time for filing a notice of appeal has elapsed. Holen v. Hjelle, 396 N.W.2d 290, 1986 N.D. LEXIS 437 (N.D. 1986).

Equivalent Statutes.
—In General.

It is not a requirement of this section that the foreign statute be identical to the North Dakota statute. Instead, the requirement is that the statutes be equivalent. Walter v. North Dakota State Highway Comm'r, 391 N.W.2d 155, 1986 N.D. LEXIS 372 (N.D. 1986).

—D.U.I.

Where a foreign statute creates a rebuttable presumption of intoxication based upon a certain blood alcohol level, while North Dakota has a per se statute, the foreign statute is “equivalent” to North Dakota law for purposes of assessing points against a driver’s license based upon a conviction under the foreign statute. Walter v. North Dakota State Highway Comm'r, 391 N.W.2d 155, 1986 N.D. LEXIS 372 (N.D. 1986).

—Penalties.

For the purposes of driving suspensions, the differences in the penalties should not be determinative of whether or not the statutes are equivalent. Walter v. North Dakota State Highway Comm'r, 391 N.W.2d 155, 1986 N.D. LEXIS 372 (N.D. 1986).

Evidence.

Uncertified photostatic copy of out-of-state conviction was sufficient evidence to suspend driver’s license, because the suspension was predicated upon a conviction in another state pursuant to this section rather than an administrative decision in another state pursuant to N.D.C.C. § 39-06-32(7). Holen v. Hjelle, 396 N.W.2d 290, 1986 N.D. LEXIS 437 (N.D. 1986).

Nature of Proceeding.

Although the loss of a license for one year is a serious sanction, that sanction is regulatory, rather than punitive, and does not support the characterization of the proceeding as criminal. Holen v. Hjelle, 396 N.W.2d 290, 1986 N.D. LEXIS 437 (N.D. 1986).

License suspension proceedings are an exercise of the police power for the protection of the public and not for punishment, and generally, the wide range of constitutional protections afforded in a criminal proceeding are not applicable to those civil proceedings. Holen v. Hjelle, 396 N.W.2d 290, 1986 N.D. LEXIS 437 (N.D. 1986).

Notice of Conviction.

An unsigned document asserted to be a notice of conviction in another state, which did not bear any indication of a judgment having been rendered, a suspension, or a certification, did not constitute notice of a conviction for purposes of this section and N.D.C.C. § 39-06-30, providing for suspension of driving privileges. Langer v. North Dakota State Highway Comm'r, 409 N.W.2d 635, 1987 N.D. LEXIS 367 (N.D. 1987).

Representation of Counsel.

Fact that appellee was not represented by counsel in an out-of-state D.U.I. proceeding and that the record did not include a valid waiver of counsel did not preclude, on due process grounds, the use by the North Dakota state highway department of the out-of-state conviction as a basis for increasing the length of a license suspension. Holen v. Hjelle, 396 N.W.2d 290, 1986 N.D. LEXIS 437 (N.D. 1986).

Written Decision.

The hearing officer was not required to include in his written decision all statutes or legal authority which might have influenced his decision, especially as his decision referred to this section, which establishes that a conviction of an “equivalent” foreign statute can be used to assess points against a driver’s license, and as the record clearly indicated the section number of the foreign statute of which appellant was convicted. Walter v. North Dakota State Highway Comm'r, 391 N.W.2d 155, 1986 N.D. LEXIS 372 (N.D. 1986).

39-06-28. Courts to forward license to director upon certain convictions.

If an individual is convicted of any offense for which this chapter requires the revocation of the operator’s license of that individual by the director, the court of the conviction shall require the surrender to the court of any operator’s license then held by the convicted individual. The court shall then forward the operator’s license and a record of the conviction to the director.

Source:

S.L. 1955, ch. 251, § 27; 1957, ch. 261, § 2; R.C. 1943, 1957 Supp., § 39-0628; 2013, ch. 291, § 36.

Cross-References.

Negligent homicide, see § 12.1-16-03.

Notes to Decisions

Time for Forwarding.

The highway commissioner should revoke the license of a driver at the time of his conviction in the trial court rather than at such time as his appellate remedies are exhausted in order to give effect to both this section and N.D.C.C. § 39-06-31. Kosmatka v. Safety Responsibility Div., 196 N.W.2d 402, 1972 N.D. LEXIS 159 (N.D. 1972).

39-06-29. Courts to report records of certain convictions. [Repealed]

Repealed by S.L. 1981, ch. 386, § 3.

39-06-29.1. Authority to suspend licenses of juveniles. [Repealed]

Repealed by S.L. 1983, ch. 415, § 39.

39-06-30. Conviction — Meaning and effect. [Repealed]

Repealed by S.L. 2013, ch. 291, § 62.

Note.

See now N.D.C.C. 39-01-01.

39-06-31. Revocation of licenses.

  1. A period of revocation is at least thirty days and not more than one year, unless otherwise provided by law.
  2. The director shall revoke for a period of one year or for a period as may be recommended by the trial court, the operator’s license of an individual upon receiving a record of the individual’s conviction of any of the following offenses:
    1. A felony in which a motor vehicle was used in the commission of the felony.
    2. A misdemeanor resulting from the operation of a motor vehicle and causing serious bodily injury, as defined in section 12.1-01-04, to another individual.
    3. The making of a false affidavit or statement under oath to the director under this chapter or under any other law relating to the ownership or operation of motor vehicles.
  3. The revocation of the license under this section may be beyond any time of imprisonment or court-ordered addiction treatment.

Source:

S.L. 1955, ch. 251, § 30; R.C. 1943, 1957 Supp., § 39-0631; S.L. 1967, ch. 292, § 10; 1973, ch. 301, § 20; 1979, ch. 405, § 6; 1983, ch. 415, § 7; 1987, ch. 460, § 1; 1993, ch. 382, § 1; 2013, ch. 291, § 37.

Cross-References.

Negligent homicide, see § 12.1-16-03.

Temporary restricted license prohibited during period of revocation under this section, see § 39-06.1-11.

Notes to Decisions

Modification of Order.

Commissioner could not modify a revocation ordered pursuant to this section or N.D.C.C. § 39-06-43, as opposed to a suspension ordered pursuant to N.D.C.C. § 39-06-32. Keller v. Paris, 207 N.W.2d 239, 1973 N.D. LEXIS 175 (N.D. 1973).

Time of Revocation.

The highway commissioner is to revoke the license of a driver at the time of his conviction in trial court pursuant to N.D.C.C. § 39-06-28 rather than at such time as his appellate remedies are exhausted. Kosmatka v. Safety Responsibility Div., 196 N.W.2d 402, 1972 N.D. LEXIS 159 (N.D. 1972).

DECISIONS UNDER PRIOR LAW

Constitutionality.

Where, under former subdivision 5 of this section, a license was revoked for the commission of two offenses within eighteen months, fact that first offense was committed before revocation statute became effective did not render revocation void as violative of constitutional inhibitions against retroactive or ex post facto legislation. Thompson v. Thompson, 78 N.W.2d 395, 1956 N.D. LEXIS 141 (N.D. 1956).

Charges.

Former subdivision 5 of this section referred to charges of the named crimes as defined by statute only. Lill v. Thompson, 84 N.W.2d 733, 1957 N.D. LEXIS 141 (N.D. 1957).

39-06-32. Authority to suspend licenses.

  1. The director may suspend the operator’s license of an individual, after hearing, upon proof by a fair preponderance of the evidence, that any of the following apply to the licensee:
    1. Commission of an offense for which mandatory revocation of license is required upon conviction.
    2. Incompetence to drive a motor vehicle.
    3. Unlawful or fraudulent use of an operator’s license.
    4. Refusal to submit to an implied consent chemical test on an Indian reservation or in another state. For purposes of this subsection, the specific requirements for establishing a refusal used on the Indian reservation or in the other state may not be considered, and photostatic copies of the records of the other jurisdiction’s driver’s licensing authority are sufficient evidence of the refusal whether those copies are certified. The suspension must be for the same length of time as the revocation in section 39-20-04. If the refusal arose out of an arrest or stop of an individual while operating a commercial motor vehicle, the period of suspension must be the same as the period of revocation provided in section 39-06.2-10.
  2. Failure, as shown by the certificate of the court, to pay a fine or serve any other sentence as ordered by a court upon conviction for any criminal traffic offense.
  3. Failure, as shown by the certificate of the court, to appear in court or post and forfeit bond after signing a promise to appear, if signing is required by law, in violation of section 39-06.1-04, willful violation of a written promise to appear in court, in violation of section 39-07-08, or violation of equivalent ordinances or laws in another jurisdiction. Upon resolution by the operator of the underlying cause for a suspension under this subsection, as shown by the certificate of the court, the director shall record the suspension separately on the driving record. This separate record is not available to the public.
  4. An administrative decision on an Indian reservation or in another state that the licensee’s privilege to drive on that Indian reservation or in that state is suspended or revoked because of a violation of that Indian reservation’s or state’s law forbidding motor vehicle operation with an alcohol concentration of at least eight one-hundredths of one percent by weight or, with respect to a person under twenty-one years of age, an alcohol concentration of at least two one-hundredths of one percent by weight, or because of a violation of that Indian reservation’s or state’s law forbidding the driving or being in actual physical control of a commercial motor vehicle while having an alcohol concentration of at least four one-hundredths of one percent by weight. The specific requirements for establishing the violation on the Indian reservation or in the other state may not be considered and certified copies of the records of the Indian reservation’s or other state’s driver’s licensing authority are sufficient evidence of the violation. The suspension must be for the same duration as the suspension in section 39-20-04.1, if the violation does not involve a commercial motor vehicle. If the violation involves a commercial motor vehicle, the period of suspension must be the same as the period of suspension provided in section 39-06.2-10. For purposes of this section, originals, photostatic copies, or electronic transmissions of the records of the driver’s licensing or other authority of the other jurisdiction are sufficient evidence whether they are certified copies.
  5. Conviction of an offense under this title and it appears from the director’s records that the offense contributed to causing an accident which resulted in death or serious personal injury or serious property damage. A suspension may not be imposed if the individual has been sanctioned for the same offense under section 39-06-31.

Source:

S.L. 1955, ch. 251, § 31; R.C. 1943, 1957 Supp., § 39-0632; S.L. 1967, ch. 292, § 11; 1969, ch. 340, § 6; 1973, ch. 301, § 21; 1977, ch. 349, § 1; 1981, ch. 385, § 2; 1985, ch. 429, § 1; 1987, ch. 458, §§ 9, 10; 1989, ch. 461, § 3; 1991, ch. 394, § 4; 1991, ch. 412, § 1; 1993, ch. 383, § 1; 1995, ch. 372, § 3; 1997, ch. 334, § 1; 1999, ch. 340, § 5; 2001, ch. 340, § 3; 2003, ch. 312, § 2; 2003, ch. 316, § 1; 2013, ch. 291, § 38.

Cross-References.

Unlawful use of license, see § 39-06-40.

Notes to Decisions

Constitutionality.

The hearing, required by Bell v. Burson, 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971) before a driver’s license can be revoked by the state, is satisfied where the licensee has been convicted of driving while under the influence of intoxicating liquor; such conviction adjudicates the issue of guilt and determines the issue of revocation. Kosmatka v. Safety Responsibility Div., 196 N.W.2d 402, 1972 N.D. LEXIS 159 (N.D. 1972).

The holding in Bell v. Burson, 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971) made the question of liability as the result of an automobile accident an important factor in the state’s determination to deprive a person of his driver’s license and vehicle registration. The supreme court of the United States found the Georgia Safety Responsibility Act was developed around a liability-related concept and, therefore, the state may not consistently, with due process, eliminate consideration of the factor of liability in its hearing before suspension. State v. Harm, 200 N.W.2d 387, 1972 N.D. LEXIS 128 (N.D. 1972).

Belated Payment of Fine.

Suspension of license pursuant to administrative procedures begun following driver’s failure to appear in court on a traffic offense or to post and forfeit bond was not automatically excused by belated payment of the fine. State v. Mische, 448 N.W.2d 412, 1989 N.D. LEXIS 224 (N.D. 1989).

Failure to Appear in Court.

There was sufficient compliance with the statutory requirement that failure to appear be shown “by the certificate of the court” where municipal judge sent driver’s license division a photocopy of only the front of two uniform traffic summonses and complaints, from which disposition of the charges could not be determined, together with a letter requesting driver’s license be suspended for failure to appear. State v. Mehlhoff, 318 N.W.2d 314, 1982 N.D. LEXIS 255 (N.D. 1982).

Defendant’s failure to appear on a traffic citation authorized the DOT to suspend his driver’s license. State v. Stuart, 544 N.W.2d 158, 1996 N.D. LEXIS 50 (N.D. 1996).

A driver who came to his hearing at the scheduled time “appeared,” even though he had failed to post an appearance bond, and the district court properly reversed the Department of Transportation’s decision to suspend his license for failure to appear. Kouba v. State, 1999 ND 233, 603 N.W.2d 696, 1999 N.D. LEXIS 258 (N.D. 1999).

Intent of Chapter.

This chapter requires that a driver who operates a motor vehicle upon the highways while his operator’s license is under suspension furnish and maintain proof of financial responsibility, and is not developed around liability-related concepts. State v. Harm, 200 N.W.2d 387, 1972 N.D. LEXIS 128 (N.D. 1972).

Modification of Suspension Order.

Commissioner could modify suspension ordered pursuant to subsection (1) of this section, but not a revocation ordered pursuant to N.D.C.C. § 39-06-31 or N.D.C.C. § 39-06-43. Keller v. Paris, 207 N.W.2d 239, 1973 N.D. LEXIS 175 (N.D. 1973).

Offense Requiring Revocation.

Subsection (1) of this section permitted the commissioner to suspend a driver’s license before conviction of an offense requiring mandatory revocation of license upon conviction, if the commissioner had evidence satisfying him that the accused driver had committed the offense. Keller v. Paris, 207 N.W.2d 239, 1973 N.D. LEXIS 175 (N.D. 1973).

Uncertified Copy of Conviction.

Uncertified photostatic copy of out-of-state conviction was sufficient evidence to suspend driver’s license, because the suspension was predicated upon a conviction in another state pursuant to N.D.C.C. § 39-06-27, rather than an administrative decision in another state pursuant to subdivision 7 of this section. Holen v. Hjelle, 396 N.W.2d 290, 1986 N.D. LEXIS 437 (N.D. 1986).

DECISIONS UNDER PRIOR LAW

Constitutionality.

The phrase “an habitually reckless or negligent driver of a motor vehicle”, although not statutorily defined, was not too vague and uncertain to stand as a lawful basis for the suspension of an operator’s license by an administrative officer. State v. Harm, 200 N.W.2d 387, 1972 N.D. LEXIS 128 (N.D. 1972).

Subsection (7) of this section, allowing suspension of driver’s license without preliminary hearing, did not violate due process under the United States constitution, since the driver was given an opportunity to be heard on each of the four occasions of his speeding violations. Cox v. Hjelle, 207 N.W.2d 266, 1973 N.D. LEXIS 173 (N.D. 1973).

Suspension of driver’s license after conviction of fourth driving offense was not violation of double jeopardy provision of United States Constitution. State v. Sinner, 207 N.W.2d 495, 1973 N.D. LEXIS 172 (N.D. 1973).

Suspension of license without presuspension hearing did not violate constitutional due process. State v. Sinner, 207 N.W.2d 495, 1973 N.D. LEXIS 172 (N.D. 1973).

Criteria for Suspension.

In considering a suspension pursuant to former subsection (2) of this section, commissioner was to consider circumstances surrounding each violation, not just number of convictions and names of the offenses, to determine whether violations were serious. Morrell v. Hjelle, 128 N.W.2d 728, 1964 N.D. LEXIS 103 (N.D. 1964), decided prior to the amendment of N.D.C.C. § 39-06-32.

Habitually Negligent Driver.

Commissioner was within his discretion in determining licensee to be a habitually negligent driver where licensee had been convicted of three violations for speeding, one violation for failure to stop at a stop sign, and one violation for failure to stop at a stop light, all within a period of six months. State v. Harm, 200 N.W.2d 387, 1972 N.D. LEXIS 128 (N.D. 1972).

Out-of-State Conviction.

Out-of-state speeding conviction was properly included as one of four offenses needed in two years for suspension under this section. State v. Sinner, 207 N.W.2d 495, 1973 N.D. LEXIS 172 (N.D. 1973).

Reckless Driving.

A showing by the state of only one traffic conviction for reckless driving was not sufficient to justify suspension of defendant’s driver’s license under former subsection 2 of this section. State v. Johnson, 139 N.W.2d 157, 1965 N.D. LEXIS 92 (N.D. 1965).

Speeding.

Speeding was not necessarily a serious offense under former subsection 2 of this section. Morrell v. Hjelle, 128 N.W.2d 728, 1964 N.D. LEXIS 103 (N.D. 1964), decided prior to the amendment of N.D.C.C. § 39-06-32.

Suspension Upheld.

Commissioner was within his discretion in suspending the license of a driver who had been convicted four times within two years of driving more than ten miles per hour over the speed limit; even though no accidents had resulted from any of the violations and some were not excessive, the commissioner’s order was reasonable. Cox v. Hjelle, 207 N.W.2d 266, 1973 N.D. LEXIS 173 (N.D. 1973).

Collateral References.

What amounts to conviction or adjudication of guilt for purpose of refusal, revocation, or suspension of automobile driver’s license, 79 A.L.R.2d 866.

Sobriety test, suspension or revocation for refusal to take, 88 A.L.R.2d 1064.

Ordinance providing for suspension or revocation of state-issued driver’s license as within municipal power, 92 A.L.R.2d 204.

Conviction or acquittal in previous criminal case as bar to revocation or suspension of driver’s license on same factual charge, 96 A.L.R.2d 612.

Point system: regulations establishing “point system” as regards suspension or revocation of license of operator of motor vehicle, 5 A.L.R.3d 690.

Physical defect or disease, denial, suspension or cancellation of driver’s license because of, 38 A.L.R.3d 452.

Necessity and sufficiency of notice and hearing before revocation or suspension of driver’s license, State v. Sinner, 207 N.W.2d 495, 1973 N.D. LEXIS 172 (N.D. 1973).

Validity and construction of legislation authorizing revocation or suspension of operator’s license for “habitual,” “persistent,” or “frequent” violations of traffic regulations, 48 A.L.R.4th 367.

Validity and application of statute or regulation authorizing revocation or suspension of driver’s license for reason unrelated to use of, or ability to operate, motor vehicle, 18 A.L.R.5th 542.

39-06-32.1. Suspension of child’s driving privileges.

Upon receipt of a copy of an order of a juvenile court ordering the suspension of a child operator’s license, the director shall suspend the operator’s license and make notation of the length of time of the suspension. During the time of the suspension, an application for a class D instruction permit may not be accepted from the child. For purposes of this section, “child” is defined by section 27-20.4-02.

Source:

S.L. 1995, ch. 124, § 19; 2013, ch. 291, § 39; 2021, ch. 245, § 33, effective July 1, 2021.

39-06-33. Hearings on suspension or revocation.

  1. If an operator’s license is suspended or revoked under section 39-06-32 or 39-06.1-10 or chapter 39-16 or 39-16.1, the director shall give notice of intention to suspend to the licensee by mailing the notice to the licensee at the address of record in the department under section 39-06-20. Actual notice of the opportunity for a hearing under this section must be deemed to have occurred seventy-two hours after the notice is mailed by regular mail. The licensee has ten days after the date of mailing of the notice to request, in writing or by other means authorized by the director, a hearing on the intended suspension or revocation.
  2. Any hearing conducted under this section and any appeal from the decision of the hearing must be conducted under chapter 28-32, except the hearing must be heard within sixty days of the receipt of the request for hearing and in the county of the licensee’s residence, unless the parties agree to a different time and place for the hearing. A hearing under this section may be conducted by telephone, television, virtual online interface, or other electronic means with the consent of the licensee. At the hearing, the regularly kept records of the director may be introduced and are prima facie evidence of their content without further foundation.
  3. The mailing of the decision and the resulting order by regular mail to the address recorded in the files of the director under section 39-06-20 is sufficient notice. If a suspension is ordered, a re-examination of the licensee may be required.
  4. If a suspension is ordered under subdivision b of subsection 1 of section 39-06-32, the notice must include a specific description of the conditions which led to the conclusion that the licensee is incompetent to drive a motor vehicle. If during the suspension those conditions dissipate, the licensee may request another hearing on the issue of competence to drive a motor vehicle. The hearing must be held in the manner required under subsections 2 and 3 for the original suspension.

Source:

S.L. 1955, ch. 251, § 32; R.C. 1943, 1957 Supp., § 39-0633; S.L. 1963, ch. 277, § 8; 1967, ch. 292, § 12; 1969, ch. 340, § 7; 1977, ch. 347, § 3; 1981, ch. 385, § 3; 1983, ch. 430, § 1; 1987, ch. 461, § 1; 1991, ch. 394, § 5; 1995, ch. 372, § 4; 2001, ch. 340, § 4; 2013, ch. 291, § 40; 2021, ch. 290, § 1, effective August 1, 2021.

Cross-References.

Verification of liability insurance, see § 39-16.1-20.1.

Notes to Decisions

Application.

This section is applicable only for matters of driver’s license suspension arising under the provisions of N.D.C.C. § 39-06-32; it was not applicable to driver whose license was suspended under the provisions of N.D.C.C. § 39-06.1-10 because he had accumulated a total of twelve or more points for speeding. State v. Kouba, 319 N.W.2d 161, 1982 N.D. LEXIS 272 (N.D. 1982).

Authority to Certify.

Driver had rebutted the presumption that the Drivers License Division Director had authority to certify Department of Transportation records where, on the date of the certification, the Director was on administrative leave due to suspected workplace misconduct, thereby making it more probable than not that the Director’s authority had been suspended. Christianson v. Henke, 2020 ND 76, 941 N.W.2d 529, 2020 N.D. LEXIS 77 (N.D. 2020).

By establishing the Drivers License Division Director was on administrative leave when certification was made, the burden shifted to the Department to either prove the Director had certification authority or proffer evidence authenticating the records. Since the Department did neither, the hearing officer abused his discretion by admitting the file as its authenticity was not established. Because the Department relied on inadmissible evidence to suspend the driver’s driving privileges, its decision was not in accordance with the law. Christianson v. Henke, 2020 ND 76, 941 N.W.2d 529, 2020 N.D. LEXIS 77 (N.D. 2020).

District court properly affirmed the Department of Transportation’s revocation of a driver’s driving privileges because the hearing file was properly admitted as a self-authenticating copy of an official record, an interim division director’s authority to certify Department records was presumed since there was no oath requirement for record custodians, nor was there a requirement that copies of Department records be certified as correct by an employee acting in a director capacity. Hewitt v. Henke, 2020 ND 102, 942 N.W.2d 459, 2020 N.D. LEXIS 92 (N.D. 2020).

Failure to Request Hearing.

At trial on charge of driving while driver’s license suspended, defendant could not collaterally attack the validity of the suspension of his license where he had been notified of his right to a hearing on the suspension, he failed to make a written request for a hearing, he was notified that his license was suspended, and he surrendered his license without contesting the validity of the suspension. State v. Mehlhoff, 318 N.W.2d 314, 1982 N.D. LEXIS 255 (N.D. 1982).

Regularly Kept Records.

Department of transportation failed to cite any persuasive support for its assertion that documents were “regularly kept records of the director” merely because they had been placed in a driver’s file; other documents statutorily recognized as “regularly kept records” are required to bear far greater indicia of authentication and reliability. There must be a prima facie showing, in the form of a certification, that the document is what it purports to be. Peterson v. North Dakota Dep't of Transp., 518 N.W.2d 690, 1994 N.D. LEXIS 141 (N.D. 1994).

39-06-33.1. Authority to suspend licenses after traffic death or injury — Show cause order required. [Repealed]

Repealed by S.L. 1987, ch. 460, § 16; S.L. 1987, ch. 461, § 4.

39-06-34. Director may require reexamination.

In addition to any other power, the director, having good cause to believe that an individual with an operator’s license is incompetent or otherwise not qualified for the operator’s license, may upon written notice of at least five days to the individual require the individual to submit to such physical, mental, or driver’s examination as may be deemed necessary by the director. If the director has good cause to believe that the individual presents an immediate danger to the motoring public, the director may immediately, and without prior notice, suspend the operator’s license of the individual pending the examination. The notice of suspension must provide the individual with the opportunity for a hearing within five days of the receipt of the notice of suspension. When a hearing is requested, the hearing must be conducted under section 39-06-33 and the hearing officer’s recommended decision must be rendered within two days of the conclusion of the hearing. Upon the conclusion of the examination, the director shall take action as may be appropriate and may suspend or revoke the license of the individual or permit the individual to retain the license, or may issue a license subject to restrictions as permitted under section 39-06-17. The director may suspend or revoke the operator’s license of the individual for refusal or neglect of the individual to submit to an examination.

Source:

S.L. 1955, ch. 251, § 33; R.C. 1943, 1957 Supp., § 39-0634; S.L. 1989, ch. 462, § 1; 2005, ch. 330, § 2; 2013, ch. 291, § 41.

39-06-34.1. Court may require reexamination.

In addition to any other powers, the court, upon finding of a moving motor vehicle violation which leads the court to believe an individual with an operator’s license is not qualified for the operator’s license, may direct the director to require the individual to submit to re-examination under section 39-06-13. Written notice of at least five days must be given to the individual by the director of the re-examination. Upon the conclusion of the examination, the director shall take action as may be appropriate and may suspend or revoke the license of the individual or permit the individual to retain the operator’s license, or may issue a license subject to restrictions as permitted under section 39-06-17. The director may suspend or revoke the operator’s license of the individual for refusal or neglect of the individual to submit to the examination.

Source:

S.L. 1975, ch. 336, § 1; 2013, ch. 291, § 42.

39-06-35. Period of suspension.

  1. After the period of suspension imposed under this title, the operator’s license of an individual that has been suspended remains suspended and may not be returned or reinstated until the individual pays to the director a reinstatement fee as listed in section 39-06-49. If applicable, the operator’s license may not be returned until compliance with subsection 4 of section 39-06.1-10. Upon payment of the reinstatement fee the license must be returned to the individual. If the individual submits payment of the reinstatement fee with a check, credit card, or debit card and the individual stops payment on the transaction, the director shall reimpose the suspension until the director receives proper payment.
  2. A reinstatement fee is not required for a license to be returned to the operator if the return of the license is due to the findings of a hearing, re-examination of hearing, or court or judicial review under chapter 39-06, 39-06.1, or 39-20.

Source:

S.L. 1955, ch. 251, § 34; R.C. 1943, 1957 Supp., § 39-0635; S.L. 1975, ch. 341, § 1; 1983, ch. 415, § 9; 1985, ch. 429, § 2; 1993, ch. 375, § 5; 1999, ch. 342, § 1; 2001, ch. 340, § 5; 2011, ch. 271, § 10; 2013, ch. 291, § 43; 2013, ch. 295, § 1.

Notes to Decisions

Refusal to Reduce Points.

Where it was undisputed that defendant had not paid the reinstatement fee, had not furnished an addiction treatment statement, and had not submitted proof of financial responsibility, the driver’s license division did not err in failing to reduce the number of points against defendant’s license to eleven after his license had been suspended for ninety-one days pursuant to N.D.C.C. § 39-06.1-12 or 39-06.1-13(1). State v. Bettenhausen, 460 N.W.2d 394, 1990 N.D. LEXIS 179 (N.D. 1990).

39-06-36. Restoration of revoked licenses.

An individual whose operator’s license has been revoked is not entitled to have the operator’s license renewed or restored unless the revocation was for a cause which has been removed, except that after the expiration of the revocation period the individual may make application for a new license, but the director may not then issue a new license unless the director is satisfied after investigation of the individual’s driving records, driving habits, and driving ability of the individual that it will be safe to grant an operator’s license to that individual. An individual whose operator’s license has been revoked must pay to the director a revocation reinstatement fee as listed in section 39-06-49, in addition to any license renewal fee, for issuance of a new license. If the individual submits payment of a reinstatement fee with a check, credit card, or debit card and the individual stops payment on the transaction, the director shall reimpose a suspension until the director receives proper payment. A reinstatement fee is not required if a revoked license is reinstated due to the findings of a hearing, re-examination of hearing, or court or judicial review as provided under chapter 39-06, 39-06.1, or 39-20.

Source:

S.L. 1955, ch. 251, § 35; R.C. 1943, 1957 Supp., § 39-0636; S.L. 1977, ch. 347, § 4; 1983, ch. 415, § 10; 1985, ch. 429, § 3; 1993, ch. 375, § 6; 1999, ch. 342, § 2; 2011, ch. 271, § 11; 2013, ch. 291, § 44.

Collateral References.

Validity, construction, application, and effect of statute requiring conditions, in addition to expiration of time, for reinstatement of suspended or revoked driver’s license, 2 A.L.R.5th 725.

39-06-37. Duration of multiple suspensions and revocations for separate violations.

  1. A suspension, revocation, or cancellation ordered under this title must be deemed to have commenced when the order is delivered to the licensee at the address of record in the department under section 39-06-20. Constructive delivery under this section must be considered as occurring forty-eight hours after the order is mailed to the person by regular mail.
  2. Unless otherwise specifically provided in this title, any suspension, revocation, cancellation, or denial of licensing ordered under this title must be in addition to, and run consecutive to, any other or existing suspension, revocation, cancellation, or denial of licensing ordered for a separate violation.

Source:

S.L. 1955, ch. 251, § 36; R.C. 1943, 1957 Supp., § 39-0637; S.L. 1967, ch. 292, § 14; 1975, ch. 341, § 2; 1981, ch. 385, § 4; 1987, ch. 458, § 11; 1987, ch. 462, § 1; 2005, ch. 329, § 3; 2013, ch. 291, § 45; 2017, ch. 265, § 1, effective August 1, 2017.

Notes to Decisions

Constructive Delivery of Suspension Order.

An affidavit of mailing stating that an order of suspension was mailed on a certain date was sufficient to establish constructive delivery of the order forty-eight hours after the stated date without further proof that the order was received by the licensee. State v. Hagstrom, 274 N.W.2d 197, 1979 N.D. LEXIS 236 (N.D. 1979).

Order of Suspension.

Order of suspension was not defective for failure to state specifically that motorist should cease operating his automobile; it was sufficient that order state that it was an order on motorist’s driver’s license because of the accumulation of thirteen points and that motorist was required to surrender the license to the drivers license bureau. State v. Hagstrom, 274 N.W.2d 197, 1979 N.D. LEXIS 236 (N.D. 1979).

39-06-38. No operation under foreign license during suspension or revocation in this state.

Any resident or nonresident whose operator’s license in this state has been suspended or revoked under this title may not operate a motor vehicle in this state under a license, permit, or registration certificate issued by any other jurisdiction or otherwise during the suspension or after the revocation until a new operator’s license is obtained when and as permitted under this title.

Source:

S.L. 1955, ch. 251, § 37; R.C. 1943, 1957 Supp., § 39-0638; S.L. 1967, ch. 292, § 15; 1987, ch. 458, § 12; 2013, ch. 291, § 46.

39-06-39. Review by court. [Repealed]

Repealed by S.L. 1987, ch. 461, § 4.

39-06-40. Unlawful use of license — Penalty.

  1. It is a class B misdemeanor for an individual:
    1. To display or cause or permit to be displayed or have in possession any canceled, revoked, fictitious, or fraudulently altered operator’s license or nondriver photo identification card;
    2. To lend that individual’s operator’s license or nondriver photo identification card to any other individual or knowingly permit the use of that individual’s operator’s license or nondriver photo identification card by another individual;
    3. To display or represent as an individual’s own any operator’s license or nondriver photo identification card not issued to that individual;
    4. To fail or refuse to surrender to the director upon demand any operator’s license or nondriver photo identification card that has been suspended, revoked, or canceled;
    5. To permit any unlawful use of an operator’s license or nondriver photo identification card issued to that individual; or
    6. To use a false or fictitious name in any application for an operator’s license or nondriver photo identification card or to knowingly make a false statement or to conceal a material fact or otherwise commit a fraud in the application.
  2. Within five days of receiving a record of conviction or other satisfactory evidence of the violation of this section, the director shall revoke the individual’s operator’s license or nondriver photo identification card. The director may set the period of revocation, not to exceed six months.

Source:

S.L. 1955, ch. 251, § 39; R.C. 1943, 1957 Supp., § 39-0640; S.L. 1967, ch. 292, § 17; 1975, ch. 106, § 430; 1987, ch. 458, §§ 13, 14; 2007, ch. 325, § 1; 2011, ch. 271, § 12; 2013, ch. 291, § 47.

Cross-References.

Suspension of licenses, see § 39-06-32.

39-06-40.1. Reproducing operator’s license — Penalty.

  1. It is unlawful for an individual to print, photograph, photostat, duplicate, alter, or in any way reproduce any operator’s license, nondriver photo identification card, or facsimile of an operator’s license or card, or to print, photograph, photostat, duplicate, alter, or in any way reproduce any document used in the production of any operator’s license or card or facsimile of an operator’s license or card, in a manner that it would be mistaken for a valid license or document containing valid information, or to display or have in possession any print, photograph, photostat, duplicate, reproduction, or facsimile unless authorized by law.
  2. It is unlawful for an individual to alter in any manner any operator’s license or nondriver photo identification card or to display or have in possession an altered operator’s license or nondriver photo identification card.
  3. An individual violating this section is guilty of a class B misdemeanor.
  4. Within five days of receiving a record of conviction or other satisfactory evidence of the violation of this section, the director shall revoke the operator’s license or cancel the nondriver photo identification card of the individual. The director may set the period of revocation, not to exceed six months.

Source:

S.L. 1969, ch. 340, § 9; 1971, ch. 370, § 1; 1975, ch. 106, § 431; 1979, ch. 405, § 7; 1981, ch. 384, § 6; 1987, ch. 458, § 15; 2013, ch. 291, § 48.

39-06-41. Making false affidavit perjury. [Repealed]

Repealed by omission from this code.

39-06-42. Penalty for driving while license suspended or revoked — Impoundment of vehicle number plates — Authority of cities.

  1. Except as provided in section 39-06.1-11, an individual who operates a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this state while an individual’s operator’s license is suspended or revoked in any jurisdiction is guilty of a class B misdemeanor for the first, second, or third offense within a five-year period. Any subsequent offense within the same five-year period is a class A misdemeanor.
  2. If the suspension or revocation was imposed for violation of section 39-08-01 or equivalent ordinance or was governed by section 39-06-31 or chapter 39-20, the sentence must be at least four consecutive days’ imprisonment and a fine as the court deems proper. The execution of sentence may not be suspended or the imposition of sentence deferred under subsection 3 or 4 of section 12.1-32-02. Forfeiture of bail is not permitted in lieu of the defendant’s personal appearance in open court for arraignment on a charge under this subsection.
  3. A court may dismiss a charge under this section upon motion by the defendant if the defendant’s operator’s license is reinstated within sixty days of the date of the offense and the defendant provides to the court satisfactory evidence of the reinstatement.
  4. In addition to any other punishment imposed, the court may order the number plates of the motor vehicle owned and operated by the offender at the time of the offense to be destroyed by the sheriff. If a period of suspension has been extended under subsection 6 of section 39-06-17, the court may order the number plates to be destroyed under this subsection. The offender shall deliver the number plates to the court without delay at a time certain as ordered by the court following the conviction. The court shall deliver the number plates to the sheriff and notify the department of the order. An offender who does not provide the number plates to the court at the appropriate time is subject to revocation of probation.
  5. A city may authorize, by ordinance, its municipal judge to order destruction of motor vehicle number plates by the office of the police officer that made the arrest in the manner provided in subsection 4.

Source:

S.L. 1955, ch. 251, § 41; R.C. 1943, 1957 Supp., § 39-0642; S.L. 1975, ch. 106, § 432; 1975, ch. 344, § 1; 1977, ch. 350, § 1; 1983, ch. 415, § 11; 1985, ch. 429, § 4; 1989, ch. 158, § 12; 1991, ch. 413, § 1; 1997, ch. 335, § 1; 2005, ch. 330, § 3; 2013, ch. 291, § 49; 2013, ch. 292, § 2; 2013, ch. 294, § 1.

Notes to Decisions

Application.

Where defendant’s license was originally suspended in 1986 for driving while under the influence, and his license was still under that suspension in July, 1989 because he had not complied with requirements for reinstatement of his driving privileges, this section would apply. State v. Bettenhausen, 460 N.W.2d 394, 1990 N.D. LEXIS 179 (N.D. 1990).

District court misapplied the law in denying defendant's motion to dismiss a driving under suspension or revocation of license charge where she had been charged under City of Grand Forks, N.D., City Code § 8-0201, the court analyzed her motion under N.D.C.C. § 39-06-42, but failed to apply the relevant municipal code provisions. City of Grand Forks v. Jacobson, 2016 ND 173, 883 N.W.2d 899, 2016 N.D. LEXIS 173 (N.D. 2016).

Actual Knowledge of Revocation.

Defendant’s claim that he did not receive notices of an opportunity for a hearing and the orders for suspension of his driver’s license provided no defense to a charge of driving while his license was revoked where at the time of arrest on the charge he had actual knowledge that his driver’s license was revoked. State v. Moore, 341 N.W.2d 373, 1983 N.D. LEXIS 433 (N.D. 1983).

Affirmative Defenses.
—Compulsion.

An affirmative defense under N.D.C.C. § 12.1-05-10 is available for driving under suspension when the compulsion is from life-threatening forces of nature. State v. Rasmussen, 524 N.W.2d 843, 1994 N.D. LEXIS 256 (N.D. 1994).

Collateral Attack on License Suspension.

At trial on charge of driving while driver’s license suspended, defendant could not collaterally attack the validity of the suspension of his license where he had been notified of his right to a hearing on the suspension, he failed to make a written request for a hearing, he was notified that his license was suspended, and he surrendered his license to the proper authorities without contesting the validity of the suspension. State v. Mehlhoff, 318 N.W.2d 314, 1982 N.D. LEXIS 255 (N.D. 1982).

The validity of a driver’s license suspension may not be collaterally attacked at a trial for driving under suspension (DUS); the proper time to challenge the validity of a driver’s license suspension is at a hearing on the suspension. Thus, where the defendant elected not to challenge the validity of the suspension of his license at a hearing on the suspension, he could not mount a collateral attack on the suspension in a DUS proceeding. State v. Larson, 419 N.W.2d 897, 1988 N.D. LEXIS 60 (N.D. 1988).

A driver’s license suspension is not subject to collateral attack if the licensee had notice of the original suspension but failed to contest it. State v. Lang, 463 N.W.2d 648, 1990 N.D. LEXIS 241 (N.D. 1990), cert. denied, 506 U.S. 839, 113 S. Ct. 118, 121 L. Ed. 2d 75, 1992 U.S. LEXIS 5886 (U.S. 1992).

Duration of License Revocation.

When the privilege of operating a motor vehicle has been revoked, it remains revoked until the operator makes an application for reinstatement and receives a new license. State v. Brude, 222 N.W.2d 296, 1974 N.D. LEXIS 156 (N.D. 1974).

Elements of Proof.
—In General.

To prove the offense of driving with a suspended or revoked license it was unnecessary for the prosecution to prove the reason that plaintiff’s driving privileges were previously revoked or suspended; those words were merely surplusage in the complaint and could be disregarded. State v. Woehlhoff, 515 N.W.2d 192, 1994 N.D. App. LEXIS 3 (N.D. Ct. App. 1994).

Evidence.
—In General.

The record of conviction and the order of a court directing the revocation or suspension of a operator’s license and the order of the highway commissioner revoking or suspending a license are admissible in evidence in a criminal action for operating a motor vehicle while license suspended. State v. Ruble, 77 N.D. 79, 40 N.W.2d 794, 1950 N.D. LEXIS 108 (N.D. 1950).

—Held Sufficient.

Where the record showed that an eyewitness observed plaintiff driving his father’s pickup on the public streets on December 9, 1992 and prior to the trial, plaintiff stipulated that his license had been previously revoked and that he did not have driving privileges on December 9, 1992, there was sufficient evidence for the jury to convict plaintiff. State v. Woehlhoff, 515 N.W.2d 192, 1994 N.D. App. LEXIS 3 (N.D. Ct. App. 1994).

Evidence was sufficient where, in addition to circumstantial evidence about the movements of his vehicle, an eyewitness testified he saw defendant drive his father’s Dodge pick-up on a public street shortly before he was arrested and charged. Woehlhoff v. State, 531 N.W.2d 566, 1995 N.D. LEXIS 87 (N.D. 1995).

Exceptions.

The “except as provided” language of subsection 1 of this section refers to a person whose license has been suspended or revoked but is nevertheless permitted to drive as a result of the issuance of a temporary-restricted license under N.D.C.C. § 39-06.1-11. State v. Grenz, 437 N.W.2d 851, 1989 N.D. LEXIS 63 (N.D. 1989).

Expired Temporary License.

Defendant was properly convicted for driving while his license was suspended where he was arrested for driving with an expired temporary driver’s license which had been issued to him, along with a hard copy of a citation for driving under influence, after he had been arrested for driving under influence and his regular license confiscated by arresting officer pursuant to N.D.C.C. § 39-20-03.1; due process requirement of notice and opportunity for a hearing before state may suspend a driver’s license was not violated because, under circumstances, defendant had actual knowledge that he was driving while his license was suspended and he was given notice of an opportunity for a hearing by his possession of hard copy of driving under influence citation which contained such notice. State v. Obrigewitch, 356 N.W.2d 105, 1984 N.D. LEXIS 388 (N.D. 1984).

Failure to Prove Financial Responsibility.

A person whose driving privileges have been suspended because of failure to provide proof of financial responsibility under N.D.C.C. ch. 39-16.1 may be convicted for driving under suspension in violation of this section. State v. Grenz, 437 N.W.2d 851, 1989 N.D. LEXIS 63 (N.D. 1989).

Notice of Sentence.

Evidence in the record that defendant authorized his attorney “to appear, defend, enter pleas and waive or request a jury trial on my behalf at all stages of the proceedings” and an acknowledgement that defendant had been orally informed of his rights by the court, and that he understood each of them, created a presumption that defendant was informed of the minimum mandatory sentence under subsection 2. City of Fargo v. Bommersbach, 511 N.W.2d 563, 1994 N.D. LEXIS 22 (N.D. 1994).

Parking Lot.

Where there was no dispute that defendant whose license was under revocation drove his motorcycle in parking lot, and that police officer who signalled defendant to move observed defendant driving in the parking lot prior to any police involvement, and where the jury determined that the parking lot was a public or private area to which the public had a right of access, the trial court did not err in determining, as a matter of law, that the defenses of entrapment and excuse were not applicable; even if affirmative defenses were available to the strict liability offense of driving under revocation, defendant committed the offense of driving illegally before the officer’s hand signals to move the vehicle so the defenses were inapplicable under the facts of the case. City of Mandan v. Willman, 439 N.W.2d 92, 1989 N.D. LEXIS 75 (N.D. 1989).

Penalty.

There is a compelling inference that the 1985 legislative assembly, by reducing the mandatory minimum penalty for violation of this section from fifteen days’ imprisonment to four consecutive days’ incarceration, determined that the former penalty was too harsh and that the latter and lighter punishment was the appropriate penalty for violations of the statute. State v. Cummings, 386 N.W.2d 468, 1986 N.D. LEXIS 311 (N.D. 1986).

Sentencing.

Definition of “offense” in N.D.C.C. § 12.1-01-04(20) applies to N.D.C.C. §§ 39-08-01 and 39-06-42. Title 39 does not provide its own definition of “offense” and there is no expressed intent to use a different definition for N.D.C.C. §§ 39-08-01 or 39-06-42State v. Skarsgard, 2007 ND 159, 740 N.W.2d 64, 2007 N.D. LEXIS 167 (N.D. 2007).

While defendant’s appeal of DUI and DUS convictions was pending, defendant was convicted, again, of DUI and DUS; trial court could properly use DUI and DUS that were pending on appeal for enhancement purposes because the first DUI and DUS were “convictions,” as defined by N.D.C.C. § 39-06-30. State v. Skarsgard, 2007 ND 159, 740 N.W.2d 64, 2007 N.D. LEXIS 167 (N.D. 2007).

Enhancing the classification of the driving while under suspension conviction for the conduct on the fourth charge from a class B misdemeanor to a class A misdemeanor was not error where the three earlier convictions, although after the fourth offense, established conduct constituting three prior offenses. State v. Brown, 2018 ND 31, 906 N.W.2d 120, 2018 N.D. LEXIS 30 (N.D. 2018).

Strict Liability.

As a matter of law, the defense of excuse based upon mistake of law, N.D.C.C. § 12.1-05-09, is not applicable to prosecutions for driving while license is suspended, a strict liability offense for which proof of culpability is not required. State v. Fridley, 335 N.W.2d 785, 1983 N.D. LEXIS 305 (N.D. 1983).

Suspended License Discovered During Safety Check.

For discussion of constitutional issues regarding random vehicle safety checks and resulting searches, see State v. Goehring, 374 N.W.2d 882, 1985 N.D. LEXIS 406 (N.D. 1985).

Uncounseled Civil Administrative Revocations.

Uncounseled civil administrative revocations may validly provide the basis for a subsequent prosecution and imprisonment for driving without a license. City of Grand Forks v. Mata, 517 N.W.2d 626, 1994 N.D. LEXIS 111 (N.D. 1994).

Collateral References.

Lack of proper automobile registration or operator’s license as evidence of operator’s negligence, 29 A.L.R.2d 963.

Law Reviews.

Summary of North Dakota Supreme Court Decisions on Criminal Law — Driving Under Suspension, 71 N.D. L. Rev. 841 (1995).

North Dakota Supreme Court Review (State v. Lee), see 86 N.D. L. Rev. 437 (2010).

39-06-43. Extension of license suspension or revocation.

  1. The director upon receiving a record of the conviction of an individual upon a charge of driving a vehicle while the operator’s license of the individual was suspended shall extend the period of that suspension for an additional:
    1. Like period not to exceed ninety days if the operator’s record for the three years preceding the most recent violation of section 39-06-42 or equivalent ordinance shows the individual’s operator’s license or privilege has not been suspended, revoked, or denied for a prior violation of section 39-06-42 or equivalent ordinance;
    2. One hundred eighty days if the operator’s record for the three years preceding the most recent violation of section 39-06-42 or equivalent ordinance shows the individual’s operator’s license or privilege has been once suspended, revoked, or denied for a prior violation of section 39-06-42 or equivalent ordinance; or
    3. One year if the operator’s record for the three-year period preceding the most recent violation of section 39-06-42 or equivalent ordinance shows the individual’s operator’s license or privilege has been at least twice suspended, revoked, or denied for a prior violation of section 39-06-42 or equivalent ordinance.
  2. If the original suspension was imposed for violation of section 39-08-01 or equivalent ordinance, the director shall extend the period of that suspension for at least six months. If the suspension of the operator’s license resulted solely from failure to appear in court or to post and forfeit bond on noncriminal traffic violations, there may be no additional period of suspension. Suspension periods for failure to appear or to post and forfeit bond on noncriminal traffic violations may be for an indefinite duration. If the conviction was upon a charge of driving while an operator’s license was revoked, the director may not issue a new operator’s license for an additional period of one year from and after the date the individual would otherwise have been entitled to apply for a new license. Upon a conviction of an individual for violating a restricted license issued under section 39-06.1-11 and in which the underlying suspension was imposed for violating section 39-08-01 or equivalent ordinance or is governed by chapter 39-20, the director shall extend the period of the underlying suspension in accordance with subsection 6 of section 39-06-17.

Source:

S.L. 1955, ch. 251, § 42; R.C. 1943, 1957 Supp., § 39-0643; S.L. 1969, ch. 340, § 8; 1981, ch. 387, § 1; 1983, ch. 415, § 12; 1991, ch. 414, § 1; 1991, ch. 415, § 1; 1995, ch. 54, § 27; 2013, ch. 291, § 50.

Notes to Decisions

Hearing Prior to Suspension.

Driver was not entitled to be given a hearing prior to suspension of his privilege to drive, following his conviction of driving while his license was suspended. State v. Tininenko, 371 N.W.2d 762, 1985 N.D. LEXIS 363 (N.D. 1985).

Modification of Order.

Commissioner could not modify a revocation ordered pursuant to this section or N.D.C.C. § 39-06-31, as opposed to a suspension ordered pursuant to N.D.C.C. § 39-06-32. Keller v. Paris, 207 N.W.2d 239, 1973 N.D. LEXIS 175 (N.D. 1973).

39-06-44. Permitting unauthorized minor to drive.

An individual may not cause or knowingly permit the individual’s minor child or ward to operate a motor vehicle upon any highway if the minor is not authorized under this chapter or in violation of this chapter.

Source:

S.L. 1955, ch. 251, § 43; R.C. 1943, 1957 Supp., § 39-0644; 2013, ch. 291, § 51.

Notes to Decisions

Negligence.

Violation of this section was evidence of negligence only, not gross negligence. Rau v. Kirschenman, 208 N.W.2d 1, 1973 N.D. LEXIS 156, 1973 N.D. LEXIS 171 (N.D. 1973).

39-06-45. Permitting unauthorized individual to drive.

An individual may not authorize or knowingly permit a motor vehicle owned by the individual or under the individual’s control to be operated upon any highway by any individual who is not authorized under this chapter or in violation of this chapter.

Source:

S.L. 1955, ch. 251, § 44; R.C. 1943, 1957 Supp., § 39-0645; 2013, ch. 291, § 52.

Notes to Decisions

Negligence.

Violation of this section was evidence of negligence only, not gross negligence. Rau v. Kirschenman, 208 N.W.2d 1, 1973 N.D. LEXIS 156, 1973 N.D. LEXIS 171 (N.D. 1973).

Collateral References.

Construction, application and effect of legislation making it offense to permit unauthorized or unlicensed person to operate motor vehicle, 69 A.L.R.2d 978.

39-06-46. Renting motor vehicles — License of renter.

A person may not rent a motor vehicle to an individual unless the individual has an operator’s license or, in the case of a nonresident, the individual has an operator’s license under the laws of the state or country of the nonresident’s residence except a nonresident whose home state or country does not require that an operator be licensed, or unless the renter certifies that the vehicle will be driven by an individual with an operator’s license.

Source:

S.L. 1955, ch. 251, § 45; R.C. 1943, 1957 Supp., § 39-0646; 2013, ch. 291, § 53.

Collateral References.

State regulation of motor vehicle rental (“you-drive”) business, 60 A.L.R.4th 784.

39-06-47. Renting motor vehicle — License inspection.

A person may not rent a motor vehicle to another individual until the lessor has inspected the operator’s license of the individual to whom the vehicle is to be rented, or of the individual by whom the vehicle shall be driven, and compared and verified the signature on the operator’s license with the signature of the individual written in the lessor’s presence.

Source:

S.L. 1955, ch. 251, § 46; R.C. 1943, 1957 Supp., § 39-0647; 2013, ch. 291, § 54.

Collateral References.

State regulation of motor vehicle rental (“you-drive”) business, 60 A.L.R.4th 784.

39-06-48. Renting motor vehicle — Records.

A person renting a motor vehicle to another person shall keep a record of the registration number of the motor vehicle so rented, the name and address of the lessee to whom the vehicle is rented, the number of the license of the lessee or the lessee’s certified driver, and the date and place when and where said license was issued. This record must be open to inspection by any police officer or the director.

Source:

S.L. 1955, ch. 251, § 47; R.C. 1943, 1957 Supp., § 39-0648; 2013, ch. 291, § 55.

Collateral References.

State regulation of motor vehicle rental (“you-drive”) business, 60 A.L.R.4th 784.

39-06-49. Fees — Deposit in state highway fund.

  1. All money received under this chapter must be paid monthly into the highway fund in the state treasury.
  2. The fee for:
    1. An application for a nondriver photo identification card is eight dollars.
    2. Written testing for an application for an operator’s license is five dollars.
    3. Online written testing for an application for an operator’s license is ten dollars.
    4. Actual ability testing for an application for an operator’s license is five dollars.
    5. An application for an operator’s license is fifteen dollars.
    6. An application for a motorized bicycle operator’s permit is ten dollars.
    7. A substitute operator’s license is eight dollars unless the substitute is for erroneous information due to a change in name or address, then the fee is three dollars.
    8. An operator’s license renewal is fifteen dollars.
    9. Reinstatement after suspension is fifty dollars unless the suspension was the result of a suspension under subsection 3, 4, or 6 of section 39-06-03 or subdivision b of subsection 1 of section 39-06-32, then the fee is twenty-five dollars, or unless the suspension was a result of a violation under section 39-08-01 or chapter 39-20, then the fee is one hundred dollars.
    10. Reinstatement after revocation is fifty dollars, unless the revocation was imposed for a violation of subsection 6 of section 39-06-17 or section 39-06-31, 39-06-43, or 39-20-04, then the fee is one hundred dollars.
  3. Any application for which there is a fee must be accompanied by the proper fee.

Source:

S.L. 1955, ch. 251, § 50; R.C. 1943, 1957 Supp., § 39-0649; S.L. 1975, ch. 337, § 1; 2013, ch. 291, § 56; 2015, ch. 268, § 5, effective April 15, 2015; 2021, ch. 287, § 3, effective July 1, 2021.

Effective Date.

The 2015 amendment of this section by section 5 of chapter 268, S.L. 2015 became effective April 15, 2015, pursuant to an emergency clause in section 15 of chapter 268, S.L. 2015.

39-06-50. Short title. [Repealed]

Repealed by S.L. 2013, ch. 291, § 62.

Effective Date.

The repeal of this section by section 62 of chapter 291, S.L. 2013 became effective July 1, 2013.

39-06-51. License to carry warnings and convictions. [Repealed]

Repealed by S.L. 1975, ch. 338, § 1.

39-06-52. Veteran indicator on license. [Repealed]

Repealed by S.L. 2013, ch. 291, § 62.

CHAPTER 39-06.1 Disposition of Traffic Offenses

39-06.1-01. Definitions.

As used in this title:

  1. “Adjudication” and “admission” means an official determination, in the manner provided by law, that a traffic violation has been committed by a named driver.
  2. “Equivalent ordinance” means an ordinance of a city, state, or other jurisdiction which is comparable to the cited statute and defines essentially the same offense, even if the language of the ordinance differs or procedural points or methods of proof differ.
  3. “Official” means a municipal judge or a magistrate or other qualified individual appointed by the presiding judge of the judicial district to serve for all or part of the judicial district.
  4. “Points” means the number of demerits assigned to particular types of traffic violations.

Source:

S.L. 1973, ch. 301, § 1; 1975, ch. 339, § 7; 1997, ch. 332, § 7; 2013, ch. 295, § 2.

39-06.1-02. Traffic violations noncriminal — Exceptions — Procedures.

  1. An individual cited, in accordance with sections 39-07-07 and 39-07-08, for a traffic violation under state law or municipal ordinance, other than an offense listed in section 39-06.1-05, is deemed to be charged with a noncriminal offense.
    1. The individual may appear before the designated official and pay the statutory fee for the violation charged at or before the time scheduled for a hearing.
    2. If the individual has posted bond, the individual may forfeit bond by not appearing at the designated time.
  2. If the individual is cited for a traffic violation under state law and posts bond by mail, the bond must be submitted within fourteen days of the date of the citation and the individual cited shall indicate on the citation whether a hearing is requested. If the individual does not request a hearing within fourteen days of the date of the citation, the bond is deemed forfeited and the violation admitted. If the individual requests a hearing, the court for the county in which the citation is issued shall issue a summons to the individual requesting the hearing notifying the individual of the date of the hearing before the designated official in accordance with section 39-06.1-03.
  3. Upon appearing at the hearing scheduled in the citation or otherwise scheduled at the individual’s request, the individual may make a statement in explanation of the individual’s action. The official may at that time waive, reduce, or suspend the statutory fee or bond, or both. If the individual cited follows the foregoing procedures, the individual is deemed to have admitted the violation and to have waived the right to a hearing on the issue of commission of the violation.
  4. The bond required to secure appearance must be identical to the statutory fee established by section 39-06.1-06.
  5. Within ten days after forfeiture of bond or payment of the statutory fee, the official having jurisdiction over the violation shall certify to the director:
    1. Admission of the violation; and
    2. In speeding violations, whether the speed charged was in excess of the lawful speed limit by more than nine miles [14.48 kilometers] per hour and the miles [kilometers] per hour by which the speed limit was exceeded.
  6. Under this section a citing police officer may not receive the statutory fee or bond.

Source:

S.L. 1973, ch. 301, § 2; 1975, ch. 339, § 8; 1981, ch. 388, § 1; 1995, ch. 318, § 2; 2013, ch. 295, § 3; 2021, ch. 291, § 1, effective August 1, 2021.

Cross-References.

Motorcycles, provisions of this chapter apply to, see § 39-10.2-07.

Notes to Decisions

Certification to Licensing Authority.

Although this section requires an official to “certify” admission of the violation to the licensing authority, it does not require a more formal notification than N.D.C.C. § 39-06.1-03, which requires hearing officer to “notify” licensing authority of the violation, or N.D.C.C. § 39-06.1-04, which requires the official to “report” the violation to the licensing authority; notation on the reverse side of traffic citation for speeding which contained “Stat. Fee”, indicating the amount of fee paid, “Jul 24 1979”, indicating the day the fee was paid or the citation processed, and the name of the judge, indicating the disposition occurred in his court, was sufficient to meet the requirements under this section for informing the licensing authority of a traffic violation admission or adjudication. Andre v. North Dakota State Highway Comm'r, 295 N.W.2d 128, 1980 N.D. LEXIS 268 (N.D. 1980).

Miranda Warnings.

While Miranda warnings may not be applicable to routine traffic offenses where a driver is detained no longer than is necessary for the issuance of a citation, Miranda warnings should be given before questioning a person who is in custody or deprived of his freedom by the authorities for a more serious offense such as driving while intoxicated. State v. Fields, 294 N.W.2d 404, 1980 N.D. LEXIS 261 (N.D. 1980).

DECISIONS UNDER PRIOR LAW

Impeachment of Witness.

Misdemeanor convictions for traffic offenses which occurred when they were still considered crimes could properly be used to impeach witness in personal injury automobile accident case. Kresel v. Giese, 231 N.W.2d 780, 1975 N.D. LEXIS 172 (N.D. 1975).

Law Reviews.

Criminal Law — Accusatory Stage of Proceedings — Custody Test Requires Miranda Warnings after DWI Arrest, 57 N.D. L. Rev. 541 (1981).

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

Viewpoint: Atwater in North Dakota: Soccer Moms Beware, Sometimes, 78 N.D. L. Rev. 467 (2002).

Article: Constitutional Roadkill in the Courts: Looking To the Legislature To Protect North Dakota Motorists Against Almost Unlimited Police Power To Stop and Investigate Crime, see 86 N.D. L. Rev. 1 (2010).

39-06.1-02.1. Notification of parents or guardians of juvenile traffic offenders.

The clerk of court shall notify the parent or guardian of any juvenile appearing before the court on a traffic offense of the charge as contained in the citation, the penalty attached to the offense, and the time and place of any court hearing on the matter.

Source:

S.L. 1977, ch. 351, § 1.

39-06.1-03. Administrative hearing — Procedures — Appeals — Stay orders.

  1. An individual cited for a traffic violation, other than an offense listed in section 39-06.1-05, who does not follow one of the procedures in section 39-06.1-02, may request a hearing on the issue of commission of the charged violation. The hearing must be held at the time scheduled in the citation, at the time scheduled in response to the individual’s request, or at some future time, not to exceed ninety days later, set at that first appearance.
  2. At the time of a request for a hearing on the issue of commission of the violation, the individual charged shall deposit with the official having jurisdiction an appearance bond equal to the statutory fee for the charged violation.
  3. If an individual cited for a traffic violation, other than an offense listed in section 39-06.1-05, has requested a hearing on the issue of the commission of the charged violation and appears at the time scheduled for the hearing, and the prosecution does not appear or is not ready to prove the commission of a charged violation at the hearing, the official shall dismiss the charge.
  4. If the official finds that the individual had committed the traffic violation, the official shall notify the director of that fact, and whether the individual was driving more than nine miles [14.48 kilometers] per hour in excess of the lawful limit, stating specifically the miles [kilometers] per hour in excess of the lawful limit, if charged with a speeding violation, within ten days of the date of the hearing. The fact that an individual has admitted a violation, or has, in any proceeding, been found to have committed a violation, may not be referred to in any way, nor be admissible as evidence in any court, civil, equity, or criminal, except in an action or proceeding involving that individual’s operator’s license.
    1. An individual may not appeal a finding from a district judge or magistrate that the individual committed the violation. If an individual is aggrieved by a finding in the municipal court that the individual committed the violation, the individual may, without payment of a filing fee, appeal that finding to the district court for trial anew. If, after trial in the appellate court, the individual is again found to have committed the violation, there is no further appeal. Notice of appeal under this subsection must be given within thirty days after a finding of commission of a violation is entered by the official. Oral notice of appeal may be given to the official at the time that the official adjudges that a violation has been committed. Otherwise, notice of appeal must be in writing and filed with the official, and a copy of the notice must be served upon the prosecuting attorney. An appeal taken under this subsection may not operate to stay the reporting requirement of subsection 4, nor to stay appropriate action by the director upon receipt of that report.
    2. The appellate court upon application by the appellant may:
      1. Order a stay of any action by the director during pendency of the appeal, but not to exceed a period of one hundred twenty days;
      2. Order a stay and that the appellant be issued a temporary restricted driving certificate by the director to be effective for no more than one hundred twenty days; or
      3. Deny the application.
    3. If the individual charged is found not to have committed the violation by the appellate court, the clerk of court shall report that fact to the director immediately. Unless the appropriate state’s attorney consents to prosecute the appeal, if an appeal under this subsection is from a violation of a city ordinance, the city attorney for the city wherein the alleged violation occurred shall prosecute the appeal. In all other cases, the appropriate state’s attorney shall prosecute the appeal.
  5. The state or the city, as appropriate, must prove the commission of a charged violation at the hearing or appeal under this section by a preponderance of the evidence. Upon an appeal under subsection 5, the court and parties shall follow, to the extent applicable, the North Dakota Rules of Civil Procedure. If on the appeal from the finding of the official the finding is affirmed, costs may be assessed at the discretion of the trial judge.

An application for a stay or temporary certificate under this subdivision must be accompanied by a certified copy of the appellant’s driving record, for the furnishing of which the director may charge a fee of three dollars. Any order granting a stay or a temporary certificate must be immediately forwarded by the clerk of court to the director, who immediately shall issue a temporary certificate in accordance with the order in the manner provided by law. A court may not make a determination on an application under this subdivision without notice to the appropriate prosecuting attorney. An individual who violates or exceeds the restrictions contained in any temporary restricted driving certificate issued under this subdivision is guilty of a traffic violation and must be assessed a fee of twenty dollars.

Source:

S.L. 1973, ch. 301, § 3; 1975, ch. 339, § 9; 1977, ch. 352, § 1; 1979, ch. 417, § 1; 1981, ch. 320, § 94; 1983, ch. 431, § 1; 1991, ch. 326, § 151; 1995, ch. 318, § 3; 1995, ch. 375, § 1; 2003, ch. 312, § 3; 2009, ch. 279, § 4; 2013, ch. 295, § 4.

Note.

Administrative Rule 16 adopted by the supreme court on December 22, 1982, effective January 1, 1983, provides that all appeals pursuant to section 40-18-19 and N.D.R.Crim.P. 37, from determinations of municipal courts shall be filed and heard in the county court of that county.

The case of State v. Silkman, 317 N.W.2d 124 (1982), annotated below, was decided prior to the 1983 amendment to this section, which substituted “appeal that finding to the district court or county court for trial anew” for “appeal that finding to the district court for trial anew, and the case may be tried to a jury, if requested” at the end of the first sentence of subdivision 5(a).

Notes to Decisions

Appeal to District Court.

The initial hearing under this section may be held before a district judge and a finding that a person committed a violation may be appealed to a district judge. Zahn v. Graff, 530 N.W.2d 645, 1995 N.D. LEXIS 57 (N.D. 1995).

The district judge to whom the case is assigned for review under this section will not review the decision of the district judge entering the finding of guilt, but there will be a new trial and not a de novo review on the record. Zahn v. Graff, 530 N.W.2d 645, 1995 N.D. LEXIS 57 (N.D. 1995).

Appeals.
—In General.

This section does not authorize appeals to the supreme court from decisions of the district court or county court of increased jurisdiction on substantive or procedural matters involved in certain traffic violations. City of Bismarck v. Walker, 308 N.W.2d 359, 1981 N.D. LEXIS 309 (N.D. 1981).

Court lacked jurisdiction to consider a driver’s appeal from a district court’s judgment finding him guilty of speeding in violation of a municipal ordinance, after a municipal court also found the driver guilty, because N.D.C.C. § 39-06.1-03 provided for an appeal from the municipal court to the district court for trial anew, but prohibited any further appeal. City of Grand Forks v. Riemers, 2008 ND 153, 755 N.W.2d 99, 2008 N.D. LEXIS 153 (N.D. 2008).

Supreme Court of North Dakota lacked jurisdiction over a municipal court judgment denying petitioner’s application for post-conviction relief after he pled guilty to driving under suspension and driving without liability insurance, because the appeal was not authorized by statute. Under N.D.C.C. § 39-06.1-03(5)(a), a person may not appeal a finding from a district judge or magistrate that the person committed the traffic violation; clearly, there was no appeal to the Supreme Court. Holbach v. City of Minot, 2012 ND 117, 817 N.W.2d 340, 2012 N.D. LEXIS 109 (N.D. 2012).

—Inclusion with Criminal Judgment.

Trial court’s inclusion of the penalty for a noncriminal administrative traffic violation in the judgment for a criminal traffic violation prejudiced the defendant’s right to appeal the noncriminal finding. State v. Ertelt, 548 N.W.2d 775, 1996 N.D. LEXIS 151 (N.D. 1996).

Noncriminal traffic offense.

In a case in which defendant was found guilty of driving without liability insurance under N.D.C.C. § 39-08-20, the Supreme Court concluded that under N.D.C.C. § 39-06.1-03(5)(a), defendant could not appeal this noncriminal traffic offense to the Supreme Court. State v. Leppert, 2014 ND 207, 855 N.W.2d 665, 2014 N.D. LEXIS 208 (N.D. 2014).

Notice of Appeal.

Where notice of appeal is in writing and filed with the official, it is necessary to serve a copy of the notice upon the city attorney or state’s attorney as the case may be; failure to serve the notice upon the city or state’s attorney when so required is jurisdictional. City of Bismarck v. Walker, 308 N.W.2d 359, 1981 N.D. LEXIS 309 (N.D. 1981).

DECISIONS UNDER PRIOR LAW

Appeals Not Permitted From District Court Judgment.

Prior to the 1983 amendment of subdivision 5(a), no appeals would lie from a judgment of the district court in a noncriminal traffic case. State v. Silkman, 317 N.W.2d 124, 1982 N.D. LEXIS 206 (N.D. 1982).

Jury Trial on Appeal.

Prior to the 1983 amendment of subdivision 5(a), this section granted defendant the right to a jury trial upon request on an appeal of a noncriminal traffic case to the district court. State v. Silkman, 317 N.W.2d 124, 1982 N.D. LEXIS 206 (N.D. 1982).

Law Reviews.

Article: Constitutional Roadkill in the Courts: Looking To the Legislature To Protect North Dakota Motorists Against Almost Unlimited Police Power To Stop and Investigate Crime, see 86 N.D. L. Rev. 1 (2010).

39-06.1-04. Failure to appear, pay statutory fee, post bond — Procedure — Penalty.

If an individual fails to choose one of the methods of proceeding in section 39-06.1-02 or 39-06.1-03, the individual is deemed to have admitted to commission of the charged violation, and the official having jurisdiction shall report the admission to the director within ten days after the date set for the hearing. Failure to appear at the time designated, after signing a promise to appear, if signing is required by law, or failure to appear without paying the statutory fee or posting and forfeiting bond is a class B misdemeanor. Failure to appear without just cause at the hearing is deemed an admission of commission of the charged violation.

Source:

S.L. 1973, ch. 301, § 4; 1975, ch. 339, § 10; 2001, ch. 340, § 6; 2013, ch. 295, § 5.

Notes to Decisions

Separate Violation.

Since the validity of a traffic citation is not an element of a failure-to-appear charge, defendant who fails to appear on a traffic citation can be convicted of violating his written promise to appear regardless of the disposition of the underlying traffic citations. State v. Stuart, 544 N.W.2d 158, 1996 N.D. LEXIS 50 (N.D. 1996).

39-06.1-05. Offenses excepted.

The procedures authorized under sections 39-06.1-02 and 39-06.1-03 may not be utilized by a person charged with one of the following offenses:

  1. Driving or being in actual physical control of a vehicle in violation of section 39-08-01, or an equivalent ordinance.
  2. Reckless driving or aggravated reckless driving in violation of section 39-08-03, or an equivalent ordinance.
  3. A violation of chapter 12.1-16 resulting from the operation of a motor vehicle.
  4. Leaving the scene of an accident in violation of section 39-08-04, 39-08-05, 39-08-07, or 39-08-08, or equivalent ordinances.
  5. Driving while license or driving privilege is suspended or revoked in violation of section 39-06-42, or an equivalent ordinance.
  6. Violating subdivision b or c of subsection 5 of section 39-24-09.
  7. Operating an unsafe vehicle in violation of subsection 2 of section 39-21-46.
  8. Causing an accident with an authorized emergency vehicle or a vehicle operated by or under the control of the director used for maintaining the state highway system in violation of subsection 5 of section 39-10-26.

Source:

S.L. 1973, ch. 301, § 5; 1975, ch. 339, §§ 11, 12; 1977, ch. 354, § 4; 1983, ch. 415, § 13; 1985, ch. 430, § 1; 1985, ch. 431, § 1; 1987, ch. 460, § 2; 1989, ch. 463, § 1; 2001, ch. 341, § 1; 2003, ch. 317, § 1; 2003, ch. 318, § 1; 2009, ch. 331, § 1; 2013, ch. 296, § 1; 2015, ch. 264, § 1, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 264, S.L. 2015 became effective August 1, 2015.

Notes to Decisions

Application of Section 39-07-07.

N.D.C.C. § 39-07-07 does not apply to a person stopped and charged with a criminal traffic violation set forth under this section. State v. Moen, 441 N.W.2d 643, 1989 N.D. LEXIS 113 (N.D. 1989).

Application of Section 39-07-08.

The legislature did not intend that N.D.C.C. § 39-07-08 apply to the criminal traffic violations listed in this section, which includes driving under the influence of intoxicating liquor. State v. Moen, 441 N.W.2d 643, 1989 N.D. LEXIS 113 (N.D. 1989).

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

Viewpoint: Atwater in North Dakota: Soccer Moms Beware, Sometimes, 78 N.D. L. Rev. 467 (2002).

39-06.1-06. Amount of statutory fees.

The fees required for a noncriminal disposition under section 39-06.1-02 or 39-06.1-03 must be as follows:

  1. For a nonmoving violation as defined in section 39-06.1-08, a fee of twenty dollars except for a violation of any traffic parking regulation on any state charitable or penal institution property or on the state capitol grounds, a fee in the amount of five dollars, excluding a violation of subsection 11 of section 39-01-15.
  2. For a moving violation as defined in section 39-06.1-09, a fee of twenty dollars, except for:
    1. A violation of section 39-10-26, 39-10-26.2, 39-10-41, or 39-10-42, a fee of fifty dollars.
    2. A violation of section 39-10-05 involving failure to yield to a pedestrian or subsection 1 of section 39-10-28, a fee of fifty dollars.
    3. A violation of section 39-21-41.2, a fee of twenty-five dollars.
    4. A violation of subsection 1 of section 39-12-02, section 39-08-23, or section 39-08-25, a fee of one hundred dollars.
    5. A violation of subdivision d of subsection 1 of section 39-12-04, a fee of one hundred dollars.
    6. A violation of subsection 6 of section 39-04-37, a fee of one hundred dollars.
    7. A violation of subsection 2 of section 39-10-21.1, a fee of two hundred fifty dollars.
    8. A violation of section 39-10-59, a fee of five hundred dollars.
    9. A violation of section 39-09-01, a fee of thirty dollars.
    10. A violation of section 39-09-01.1, a fee of thirty dollars.
    11. A violation of section 39-10-46 or 39-10-46.1, a fee of one hundred dollars.
    12. A violation of subsection 1 of section 39-08-20, one hundred fifty dollars for a first violation and three hundred dollars for a second or subsequent violation in three years.
    13. A violation of section 39-10-24 or 39-10-44, a fee of forty dollars.
    14. A violation of section 39-10-50.1, a fee of fifty dollars.
    15. A violation of section 39-19-03, a fee of fifty dollars.
  3. For a violation of section 39-21-44 or a rule adopted under that section, a fee of two hundred fifty dollars.
  4. Except as provided in subsections 5 and 7, for a violation of section 39-09-02, or an equivalent ordinance, a fee established as follows:
  5. On a highway on which the speed limit is a speed higher than fifty-five miles [88.51 kilometers] an hour, for a violation of section 39-09-02, or an equivalent ordinance, a fee established as follows:
  6. For a violation of section 39-06.2-10.9 or subsection 3 of section 39-21-46, a fee established as follows:
    1. Driving more than eleven hours since the last ten hours off duty, driving after fourteen hours on duty since the last ten hours off duty, driving after sixty hours on duty in seven days or seventy hours in eight days, no record of duty status or log book in possession, failing to retain previous seven-day record of duty status or log book, or operating a vehicle with four to six out-of-service defects, one hundred dollars;
    2. False record of duty status or log book or operating a vehicle with seven to nine out-of-service defects, two hundred fifty dollars;
    3. Operating a vehicle after driver placed out of service, operating a vehicle with ten or more out-of-service defects, or operating a vehicle that has been placed out of service prior to its repair, five hundred dollars; and
    4. All other violations of motor carrier safety rules adopted under subsection 3 of section 39-21-46, fifty dollars.
  7. On a highway on which the speed limit is posted in excess of sixty-five miles [104.61 kilometers] an hour, for a violation of section 39-09-02, or equivalent ordinance, a fee of five dollars for each mile per hour over the limit.
  8. For a violation of a school zone speed limit under subdivision b of subsection 1 of section 39-09-02, a fee of forty dollars for one through ten miles per hour over the posted speed; and forty dollars, plus one dollar for each additional mile per hour over ten miles per hour over the limit unless a greater fee would be applicable under this section.
  9. For a violation of a highway construction zone speed limit under subsection 2 of section 39-09-02, a fee of eighty dollars for one through ten miles per hour over the posted speed; and eighty dollars plus two dollars for each mile per hour over ten miles per hour over the limit, unless a greater fee would be applicable under this section. The fee in this subsection does not apply to a highway construction zone unless individuals engaged in construction are present at the time and place of the violation and the posted speed limit sign states “Minimum Fee $80”.

Miles per hour over lawful speed limit Fee 1 - 5 $ 5 6 - 10 $ 5 plus $1/each mph over 5 mph over limit 11 - 15 $ 10 plus $1/each mph over 10 mph over limit 16 - 20 $ 15 plus $2/each mph over 15 mph over limit 21 - 25 $ 25 plus $3/each mph over 20 mph over limit 26 - 35 $ 40 plus $3/each mph over 25 mph over limit 36 - 45 $ 70 plus $3/each mph over 35 mph over limit 46 + $100 plus $5/each mph over 45 mph over limit

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Miles per hour over lawful speed limit Fee 1 - 10 $2/each mph over limit 11 + $20 plus $5/each mph over 10 mph over limit

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Source:

S.L. 1973, ch. 301, § 6; 1979, ch. 418, § 1; 1979, ch. 419, § 1; 1981, ch. 379, § 3; 1981, ch. 389, § 1; 1981, ch. 391, § 1; 1983, ch. 432, § 1; 1985, ch. 430, § 4; 1987, ch. 463, §§ 1, 2; 1989, ch. 69, § 44; 1989, ch. 319, § 4; 1991, ch. 416, § 1; 1993, ch. 45, § 16; 1993, ch. 384, § 1; 1993, ch. 385, § 1; 1995, ch. 376, § 1; 1997, ch. 336, § 1; 1997, ch. 337, § 1; 1999, ch. 343, § 1; 1999, ch. 344, § 1; 2001, ch. 341, § 2; 2001, ch. 342, § 1; 2003, ch. 317, § 2; 2003, ch. 319, § 1; 2003, ch. 320, § 1; 2005, ch. 331, § 1; 2005, ch. 340, § 3; 2009, ch. 332, § 1; 2011, ch. 279, § 1; 2011, ch. 192, § 3; 2011, ch. 268, § 3; 2011, ch. 280, § 1; 2013, ch. 295, § 6; 2013, ch. 297, § 1; 2015, ch. 263, § 1; 2017, ch. 257, § 2, effective August 1, 2017; 2017, ch. 266, § 1, effective August 1, 2017; 2017, ch. 269, § 1, effective August 1, 2017; 2019, ch. 317, § 1, effective August 1, 2019; 2019, ch. 327, § 2, effective August 1, 2019; 2021, ch. 280, § 2, effective August 1, 2021; 2021, ch. 283, § 5, § 6, effective August 1, 2021.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 263, S.L. 2015 became effective August 1, 2015.

Note.

Section 39-06.1-06 was amended 3 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 5 of Chapter 283, Session Laws 2021, House Bill 1502; Section 6 of Chapter 283, Session Laws 2021, House Bill 1502; and Section 2 of Chapter 280, Session Laws 2021, Senate Bill 2097.

Section 39-06.1-06 was amended 2 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 2 of Chapter 327, Session Laws 2019, House Bill 1405; and Section 1 of Chapter 317, Session Laws 2019, House Bill 1327.

Section 39-06.1-06 was amended 3 times by the 2017 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 266, Session Laws 2017, House Bill 1311; Section 2 of Chapter 257, Session Laws 2017 House Bill 1211; and Section 1 of Chapter 269, Session Laws 2017, House Bill 1430.

This section is set out above to reflect a correction from the state since the 2015 cumulative supplement. In subsection (4) references to subsections (7) and (11) were changed to (5) and (7).

Chapter 385, S.L. 1993, which amended this section, was referred and approved on June 14, 1994, at the primary election, and became effective July 14, 1994, under N.D. Const., Art. III, § 8.

The 1989 amendment of this section by S.L. 1989, ch. 464, section 1 was disapproved by R.M. December 5, 1989.

S.L. 1987, ch. 463, § 7 provided that the act would be effective on the date the governor certified to the secretary of state and to the highway commissioner that the federal restrictions on speed limits exceeding fifty-five miles per hour are no longer in effect, but only if that day was before July 1, 1989. The governor issued such certification on April 7, 1987.

Notes to Decisions

Authority of Home Rule City.

N.D.C.C. § 12.1-01-05 precluded the City of Fargo, North Dakota, a home rule city, from imposing fees for noncriminal traffic offenses that exceeded the limits set forth for equivalent violations in N.D.C.C. § 39-06.1-06, because N.D.C.C. § 12.1-01-05 clearly and unambiguously precludes a home rule city from superseding criminal or noncriminal offenses defined by State law, when a penalty that exceeds the limits delineated by equivalent State law supersedes State law; the word “offense” rather than the word “crimes” is used in the text of N.D.C.C. § 12.1-01-05, and an “offense” under N.D.C.C. § 12.1-01-05 includes noncriminal, as well as criminal offenses. Sauby v. City of Fargo, 2008 ND 60, 747 N.W.2d 65, 2008 N.D. LEXIS 60 (N.D. 2008).

39-06.1-07. Notification to offenders — Duties of director.

  1. The director shall prepare notification forms to be delivered to the charged individual with the uniform traffic summons and complaint under section 29-05-31. The notification form may be delivered to the individual in writing, by providing a website address, or providing a quick response code. The notification forms must contain language, approved by the attorney general, informing an individual charged with a traffic violation, other than offenses listed in section 39-06.1-05, of the procedures available to that individual under sections 39-06.1-02 and 39-06.1-03. The notification must contain a schedule of points to be charged against an individual’s driving record or other operator’s license penalties as provided by law and a schedule of statutory fees and bond amounts as determined in accordance with this chapter. A notification form separate from the uniform traffic summons and complaint may be delivered to an individual charged with a violation of subsection 3 of section 39-21-46.
  2. The director shall prepare a temporary operator’s permit under sections 39-20-03.1, 39-20-03.2, and 39-20-04. The temporary operator’s permit must inform the driver of the procedures available under chapter 39-20 and must be issued in accordance with that chapter. The temporary operator’s permit may not be delivered by mail or electronic means unless specifically authorized under chapter 39-20.

Source:

S.L. 1973, ch. 301, § 7; 1975, ch. 339, § 13; 1983, ch. 415, § 14; 2001, ch. 341, § 3; 2013, ch. 295, § 7; 2021, ch. 291, § 2, effective August 1, 2021.

39-06.1-08. Nonmoving violation defined.

For the purposes of section 39-06.1-06, a “nonmoving violation” means:

  1. A violation of section 39-04-02.1, subsection 6 of section 39-04-37, subsection 4 of section 39-06-17, and section 39-06-20, 39-06-44, 39-06-45, 39-10-47, 39-10-49, 39-10-50, 39-10-54.1, 39-21-08, 39-21-10, 39-21-11, or 39-21-14, or a violation of any municipal ordinance equivalent to the foregoing sections.
  2. A violation, discovered at a time when the vehicle is not actually being operated, of section 39-21-03, 39-21-05, 39-21-13, 39-21-19, 39-21-32, 39-21-37, 39-21-39, or 39-21-44.2, or a violation of any municipal ordinance equivalent to the foregoing sections.

Source:

S.L. 1973, ch. 301, § 8; 1999, ch. 341, § 4; 2011, ch. 268, § 4; 2013, ch. 291, § 57; 2019, ch. 318, § 1, effective August 1, 2019; 2021, ch. 283, § 7, effective August 1, 2021.

39-06.1-09. Moving violation defined.

For the purposes of sections 39-06.1-06 and 39-06.1-13, a “moving violation” means a violation of section 39-04-11, 39-04-22, subsection 1 of section 39-04-37, section 39-04-55, 39-06-01, 39-06-04, 39-06-14, 39-06-14.1, 39-06-16, 39-06.2-07, 39-08-20, 39-08-23, 39-08-24, 39-08-25, 39-09-01, 39-09-01.1, 39-09-04.1, or 39-09-09, subsection 1 of section 39-12-02, section 39-12-04, 39-12-05, 39-12-06, 39-12-09, 39-19-03, 39-21-45.1, 39-24-02, or 39-24-09, except subdivisions b and c of subsection 5 of section 39-24-09, or equivalent ordinances; or a violation of the provisions of chapter 39-10, 39-10.2, 39-21, or 39-27, or equivalent ordinances, except subsection 5 of section 39-10-26, section 39-21-44, and subsections 2 and 3 of section 39-21-46, and those sections within those chapters which are specifically listed in subsection 1 of section 39-06.1-08.

Source:

S.L. 1973, ch. 301, § 9; 1977, ch. 355, § 1; 1979, ch. 187, § 77; 1979, ch. 418, § 2; 1979, ch. 419, § 2; 1981, ch. 389, § 2; 1981, ch. 392, § 1; 1985, ch. 433, § 1; 1987, ch. 464, § 1; 1987, ch. 465, § 1; 1987, ch. 466, § 1; 1989, ch. 463, § 2; 2001, ch. 341, § 4; 2003, ch. 318, § 2; 2003, ch. 319, § 2; 2005, ch. 331, § 2; 2009, ch. 331, § 2; 2011, ch. 279, § 2; 2011, ch. 272, § 5; 2013, ch. 291, § 58; 2013, ch. 295, § 8; 2013, ch. 296, § 2; 2015, ch. 264, § 2, effective August 1, 2015; 2017, ch. 269, § 2, effective August 1, 2017; 2021, ch. 280, § 3, effective August 1, 2021; 2021, ch. 283, § 8, effective August 1, 2021.

Effective Date.

The 2015 amendment of this section by section 2 of chapter 264, S.L. 2015 became effective August 1, 2015.

Note.

Section 39-06.1-09 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 8 of Chapter 283, Session Laws 2021, House Bill 1502; and Section 3 of Chapter 280, Session Laws 2021, Senate Bill 2097.

Notes to Decisions

Probable Cause.

Where officer observed defendant commit a moving violation, by crossing the center line, and her observation gave her a valid basis to stop defendant’s vehicle, the validity of the stop was not vitiated merely because the officer subjectively stopped the vehicle for another reason, i.e., another officer told her to, which, in itself, may not have provided an adequate basis for the stop. Zimmerman v. North Dakota Dep't of Transp. Dir, 543 N.W.2d 479, 1996 N.D. LEXIS 40 (N.D. 1996).

39-06.1-10. Entries against driving record — Director duties — Hearings — Demerit schedule — Suspension.

  1. If a report of a conviction of a traffic offense, or admission or adjudication of a traffic violation is received by the director, the director shall proceed to enter the proper points on the licensee’s driving record, unless the points assigned to the violation are two or less. If the points assigned to the violation are two or less, the violation and points may not be entered on the driving record but must be recorded separately, and the separate record is not available to the public. Points from a violation in which the points are two or less are considered a part of the driving record for the sole purpose of point reduction under section 39-06.1-13 and for purposes of license suspension. If the driving record shows that the licensee has accumulated a total of twelve or more points, assigned on the basis of the schedule contained in subsection 3, the director shall notify the licensee of the director’s intention to suspend the operator’s license under section 39-06-33. For the purposes of this chapter, the director also may receive and act on reports of traffic offense convictions forwarded by federal, military, and tribal courts in this state.
  2. If the director confirms, after hearing or opportunity for hearing, that the licensee’s driving record has an accumulated point total of twelve or more points, the director shall suspend the licensee’s operator’s license according to the following schedule:
  3. Points must be assigned and accumulated on the basis of the following schedule:
    1. Noncriminal Violations
    2. Criminal Violations
    1. If the director is informed by a court that an individual has been convicted of violating section 39-08-01, or equivalent ordinance, the director, subject to the offender’s opportunity for hearing under subsection 1, shall suspend that individual’s operator’s license until the offender furnishes to the director the written statement of the counselor or instructor of an appropriate licensed addiction treatment program that the offender does not require either an education or treatment program or that the offender has physically attended the prescribed program and has complied with the attendance rules. The director shall send notice to the offender informing the offender of the provisions of this subsection.
    2. If within the seven years preceding the most recent violation of section 39-08-01, or equivalent ordinance, the offender has previously violated section 39-08-01, or equivalent ordinance, at least three times, the driving privileges must be suspended and may be restored only after the offender has completed addiction treatment through an appropriate licensed addiction treatment program and has had no alcohol-related or drug-related offense for two consecutive years after completion of treatment. The offender must receive a temporary restricted license during the suspension period, in accordance with section 39-06.1-11.
  4. If judicial disposition of a traffic violation includes an order or recommendation of suspension or revocation of an operator’s license, the suspension or revocation runs concurrently with any suspension ordered under this section. After a conviction of an individual for violating section 39-08-01, the director, in suspending the individual’s operator’s license, shall give credit for the time in which license suspension or revocation has been or is being imposed under chapter 39-20 in connection with the same offense.
  5. A suspension must be deemed to have commenced twenty days after the order of suspension is delivered to the licensee at the licensee’s address of record in the department. Constructive delivery under this section must be considered as occurring seventy-two hours after proper deposit in the mails.
  6. Points assigned under this section must be recorded against an operator’s driving record regardless of whether the operator has ever had an operator’s license issued in this state, and the director shall maintain records on all violators regardless of licensure. Upon the assignment of twelve or more points, any unlicensed operator must be deemed to be driving under suspension if the operator has never had an operator’s license or if the operator has failed to renew the operator’s license.
  7. The period of suspension imposed for a violation of section 39-08-01, 39-08-01.2, or 39-08-01.4 or equivalent ordinance is:
    1. Ninety-one days if the operator’s record shows the individual has not violated section 39-08-01 or equivalent ordinance within the seven years preceding the last violation.
    2. One hundred eighty days if the operator’s record shows the individual has not violated section 39-08-01 or equivalent ordinance within the seven years preceding the last violation and the violation was for an alcohol concentration of at least eighteen one-hundredths of one percent by weight.
    3. Three hundred sixty-five days if the operator’s record shows the individual has once violated section 39-08-01 or equivalent ordinance within the seven years preceding the last violation.
    4. Two years if the operator’s record shows the individual has at least once violated section 39-08-01 or equivalent ordinance within the seven years preceding the last violation and the violation was for an alcohol concentration of at least eighteen one-hundredths of one percent by weight.
    5. Two years if the operator’s record shows the individual has at least twice violated section 39-08-01 or equivalent ordinance within the seven years preceding the last violation.
    6. Three years if the operator’s record shows the individual has at least twice violated section 39-08-01 or equivalent ordinance within the seven years preceding the last violation and the violation is for an alcohol concentration of at least eighteen one-hundredths of one percent by weight.
  8. If an individual has a temporary restricted driver’s license with the restriction the individual participates in the twenty-four seven sobriety program under chapter 54-12, the individual may operate a motor vehicle during the suspension periods under this section.

Accumulated Point Total: Period of Suspension: a. Twelve 7 days b. Thirteen and above 7 days for each point over eleven

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Noncriminal Adjudicationor Admission of: PointsAssigned: (1) Overtime and double parking in violation of city ordinances 0 points (2) Failure to display license plates 1 point (3) Permitting unauthorized minor to drive 2 points (4) Permitting unauthorized individual to drive 2 points (5) Unlawful stopping, standing, or parking on open highway in violation of section 39-10-47 2 points (6) Unlawful parking in prohibited place 1 point (7) Leaving motor vehicle improperly unattended on an open highway 1 point (8) Opening or leaving motor vehicle doors open when unsafe to do so 1 point (9) Except as provided in and , knowingly driving with defective, nonexistent, or unlawful equipment in violation of , or equivalent ordinances sections 39-21-44 39-21-45.1 section 39-21-46 2 points (10) Careless driving in violation of , or equivalent ordinance section 39-09-01 6 points (11) Violating or exceeding restrictions contained in a restricted certificate issued under section 39-06.1-03 4 points (12) Racing or drag racing motor vehicles in violation of , or equivalent ordinance section 39-08-03.1 10 points (13) Exhibition driving in violation of , or equivalent ordinance section 39-08-03.1 3 points (14) Failing to yield right of way in violation of , through , , , , or , or equivalent ordinances section 39-10-20 39-10-22 39-10-26 39-10-28 39-10-33.3 39-10-44 39-10-72 2 points (15) Disobeying an official traffic-control device in violation of , , or , or equivalent ordinances section 39-10-04 39-10-05 39-10-07 2 points (16) Driving on wrong side of road in violation of , , or , or equivalent ordinances section 39-10-08 39-10-14 39-10-16 2 points (17) Failing to dim headlights in violation of , or equivalent ordinance section 39-21-21 1 point (18) Failing to stop at railroad crossing in violation of or , or equivalent ordinances section 39-10-41 39-10-42 3 points (19) Knowingly driving with defective brakes in violation of or , or equivalent ordinances section 39-21-32 39-21-33 2 points (20) Disregarding the lawful commands of a police officer in violation of , or equivalent ordinance section 39-10-02 2 points (21) Overtaking where prohibited or in an unsafe manner in violation of , , , or , or equivalent ordinances section 39-10-11 39-10-12 39-10-13 39-10-15 2 points (22) Overtaking and passing a schoolbus in violation of , or equivalent ordinance section 39-10-46 6 points (23) Operating a motor vehicle without a license in violation of , or equivalent ordinance section 39-06-01 4 points (24) Improperly operating or unlawfully carrying passengers or packages on a motorcycle in violation of , or equivalent ordinance section 39-10.2-02 2 points (25) Improperly operating a motorcycle in laned traffic in violation of , or equivalent ordinance section 39-10.2-03 2 points (26) Clinging to other vehicles while riding a motorcycle in violation of , or equivalent ordinance section 39-10.2-04 4 points (27) Carrying a passenger on a motorcycle not equipped with passenger footrests in violation of , or equivalent ordinance section 39-10.2-05 2 points (28) Operating a motorcycle without protective headgear in violation of subsection 1 of , or equivalent ordinance section 39-10.2-06 2 points (29) Failing to use the care required in , or equivalent ordinance section 39-09-01.1 2 points (30) Except as provided in paragraph 33, operating a motor vehicle in excess of speed limit in violation of , or equivalent ordinance section 39-09-02 6 - 10 mph over limit 0 points 11 - 15 mph over limit 1 point 16 - 20 mph over limit 3 points 21 - 25 mph over limit 5 points 26 - 35 mph over limit 9 points 36 - 45 mph over limit 12 points 46 + mph over limit 15 points (31) Driving in violation of section 39-08-18 2 points (32) Driving in violation of section 39-08-09 6 points (33) On a highway on which the speed limit is posted in excess of sixty-five miles [104.61 kilometers] an hour, operating a motor vehicle in excess of the speed limit in violation of , or equivalent ordinance section 39-09-02 Miles per hour overlawful speed limit Points 1 - 5 0 6 - 10 1 11 - 15 3 16 - 20 5 21 - 25 7 26 - 30 10 31 - 35 12 36 + 15 (34) Failing to have a minor in a child restraint system or seatbelt in violation of section 39-21-41.2 1 point (35) Failure or refusal to comply with rules of the superintendent of the highway patrol in violation of subsection 3 of section 39-21-46 0 points (36) Violation of or any rule adopted under that section section 39-21-44 2 points (37) Except as provided in paragraph 39, operating a motor vehicle without liability insurance, in violation of section 39-08-20 6 points (38) Except as provided in paragraph 39, operating a motor vehicle without liability insurance, in violation of , if the driving record shows that the licensee has within the eighteen months preceding the violation previously violated section 39-08-20 section 39-08-20 12 points (39) Operating a motor vehicle without liability insurance, in violation of , if the violation was discovered as the result of investigation of an accident in which the driver is the owner section 39-08-20 14 points (40) Driving a modified motor vehicle in violation of , or equivalent ordinance section 39-21-45.1 1 point (41) Driving in violation of the conditions of an instructional permit. 2 points

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Conviction of: PointsAssigned: (1) Reckless driving in violation of , or equivalent ordinance section 39-08-03 8 points (2) Aggravated reckless driving in violation of , or equivalent ordinance section 39-08-03 12 points (3) Leaving the scene of an accident involving property damage in violation of , , or , or equivalent ordinances section 39-08-05 39-08-07 39-08-08 14 points (4) Leaving the scene of an accident involving personal injury or death in violation of , or equivalent ordinance section 39-08-04 18 points (5) Violating restrictions in a restricted license issued under and relating to the use of eyeglasses or contact lenses while driving section 39-06-17 3 points (6) Violating any restrictions other than those listed in paragraph 5, contained in a restricted license issued under or section 39-06-17 39-06.1-11 4 points (7) Except as provided in paragraph 9 of subdivision a, knowingly operating an unsafe vehicle in violation of , or equivalent ordinance section 39-21-46 2 points (8) Fleeing in a motor vehicle from a peace officer in violation of , or equivalent ordinance section 39-10-71 24 points (9) Causing an accident with an authorized emergency vehicle or a vehicle operated by or under the control of the director used for maintaining the state highway system in violation of subsection 5 of , or equivalent ordinance section 39-10-26 2 points

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Source:

S.L. 1973, ch. 301, § 10; 1975, ch. 339, § 14; 1975, ch. 340, § 1; 1975, ch. 341, § 3; 1977, ch. 353, § 1; 1977, ch. 354, §§ 2, 3; 1977, ch. 355, § 2; 1979, ch. 187, § 78; 1979, ch. 418, § 3; 1979, ch. 420, § 1; 1981, ch. 91, § 27; 1981, ch. 385, § 5; 1981, ch. 389, § 4; 1981, ch. 391, § 2; 1981, ch. 392, § 2; 1983, ch. 415, §§ 15, 16; 1983, ch. 432, § 2; 1985, ch. 429, § 5; 1985, ch. 430, §§ 2, 4; 1985, ch. 434, §§ 1, 2; 1985, ch. 436, § 1; 1987, ch. 460, § 3; 1987, ch. 461, § 2; 1987, ch. 463, §§ 3, 4; 1987, ch. 464, § 2; 1987, ch. 465, § 2; 1987, ch. 466, § 2; 1987, ch. 467, §§ 1, 2; 1987, ch. 468, § 1; 1989, ch. 463, §§ 3, 4; 1991, ch. 414, §§ 2 to 4; 1991, ch. 416, § 2; 1991, ch. 417, § 1; 1993, ch. 375, § 7; 1993, ch. 386, § 1; 1995, ch. 377, § 1; 1997, ch. 337, § 2; 1999, ch. 344, § 2; 2001, ch. 341, § 5; 2003, ch. 317, § 3; 2003, ch. 318, § 3; 2003, ch. 321, § 1; 2007, ch. 325, §§ 2, 3; 2009, ch. 331, § 3; 2009, ch. 333, § 1; 2011, ch. 271, § 13; 2011, ch. 272, § 6; 2013, ch. 295, § 9; 2013, ch. 296, §§ 3–6; 2013, ch. 301, §§ 4, 5; 2015, ch. 264, § 3, § 4, effective August 1, 2015; 2017, ch. 265, § 2, effective August 1, 2017; 2019, ch. 319, § 1, effective August 1, 2019; 2021, ch. 283, §§ 9, 10, effective August 1, 2021.

Effective Date.

The 2015 amendment of this section by sections 3 and 4 of chapter 264, S.L. 2015 became effective August 1, 2015.

Note.

Section 39-06.1-10 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in of Chapter 283, Session Laws 2021, House Bill 1502; and Section 10 of Chapter 283, Session Laws 2021, House Bill 1502.

Section 39-06.1-10 was amended 2 times by the Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 3 of Chapter 264, Session Laws 2015, Senate Bill 2166; and Section 4 of Chapter 264, Session Laws 2015, Senate Bill 2166.

Section 8 of chapter 272, S.L. 2011 provides: “ APPLICATION. This Act applies to permits and licenses issued after January 1, 2012, and does not effect a valid permit or license issued before the effective date of this Act.”

Section 6 of chapter 331, S.L. 2001, provides:

APPLICATION OF DEMERIT POINTS OR FEES. The operator’s license demerit points or fees for driving in violation of section 39-09-02, or equivalent ordinance, as provided by Senate Bill No. 2088, as passed by the fifty-seventh legislative assembly, do not apply to offenses committed before July 1, 2001.”

Cross-References.

Licensing substance abuse treatment programs, see ch. 50-31.

Penalty for driving while license suspended or revoked, see §§ 39-06-42, 39-06-43.

Prior offenses under § 39-08-01 restricted to those after July 1, 1981, see § 39-08-01.1.

Notes to Decisions

Constitutionality.

Subdivision 3.1(a), imposing additional requirements for reinstatement of a driver’s license when suspension is for driving under the influence of intoxicating liquor, is clear and unambiguous and is not unconstitutionally vague. State v. Bettenhausen, 460 N.W.2d 394, 1990 N.D. LEXIS 179 (N.D. 1990).

Assignment of Points.

The number of points assigned to licensee’s driving record should be in accordance with the statute in effect at the time of commission of the offense rather than the statute in effect at the time of sentence. State v. Goodbird, 344 N.W.2d 483, 1984 N.D. LEXIS 251 (N.D. 1984).

Trial court does not have authority to assign points to licensee’s driving record upon conviction; court’s responsibility is to report the conviction to the highway commissioner who, upon receipt of the report of the conviction, has the duty to enter the proper number of points on the licensee’s driving record. State v. Goodbird, 344 N.W.2d 483, 1984 N.D. LEXIS 251 (N.D. 1984).

Challenge to Evaluation.

Individual who did not request an administrative hearing to challenge the validity of his evaluation, nor seek another evaluation, was in no position to challenge either the division’s reliance on the evaluation by his addiction counselor or the division’s reliance on his failure to file another evaluation by an addiction counselor that would satisfy the statutory requirement. State v. Bettenhausen, 460 N.W.2d 394, 1990 N.D. LEXIS 179 (N.D. 1990).

Constructive Delivery of Suspension Order.

An affidavit of mailing stating that an order of suspension was mailed to a licensee on a certain date was sufficient to establish constructive delivery of the order forty-eight hours after the stated date without further proof that the licensee received the order. State v. Hagstrom, 274 N.W.2d 197, 1979 N.D. LEXIS 236 (N.D. 1979).

Due Process.

Due process of law requires notice and opportunity for a hearing before the state may suspend a driver’s license, except in emergency situations. State v. Knittel, 308 N.W.2d 379, 1981 N.D. LEXIS 334 (N.D. 1981).

Hearing.

Defendant has no right to have the suspension hearing provided by this section held in the county of his residence; highway commissioner acted properly in accordance with the procedure of the Administrative Practices Act, N.D.C.C. ch. 28-32, and defendant was accorded a fair opportunity to be heard, where the commissioner, through his hearing officer, set the time and place of the suspension hearing after the parties could not agree as to time and place. State v. Kouba, 319 N.W.2d 161, 1982 N.D. LEXIS 272 (N.D. 1982).

Motorists Charged with Knowledge of Statute.

Every motorist is charged with notice of contents of statutes specifying points assessed for various violations of motor vehicle statutes. State v. Hagstrom, 274 N.W.2d 197, 1979 N.D. LEXIS 236 (N.D. 1979).

Notice of Opportunity for a Hearing.

This section and due process of law require more than constructive notice of the opportunity for a hearing on the suspension of a driver’s license; notice of an opportunity for a hearing sent by regular mail is insufficient to guarantee due process of law when the presumption of receipt raised by N.D.C.C. § 31-11-03 is rebutted. State v. Knittel, 308 N.W.2d 379, 1981 N.D. LEXIS 334 (N.D. 1981).

Order of Suspension.

Order of suspension was not defective for failure to state specifically that motorist should cease operating his automobile; it was sufficient that order state that it was an order on motorist’s driver’s license because of the accumulation of thirteen points and that motorist was required to surrender the license to the driver’s license bureau. State v. Hagstrom, 274 N.W.2d 197, 1979 N.D. LEXIS 236 (N.D. 1979).

Refusal to Reduce Points.

Where it was undisputed that defendant had not paid the reinstatement fee, had not furnished an addiction treatment statement, and had not submitted proof of financial responsibility, the driver’s license division did not err in failing to reduce the number of points against defendant’s license to eleven after his license had been suspended for ninety-one days pursuant to N.D.C.C. § 39-06.1-12 or 39-06.1-13(1). State v. Bettenhausen, 460 N.W.2d 394, 1990 N.D. LEXIS 179 (N.D. 1990).

Collateral References.

Point system, regulations establishing, as regards suspension or revocation of license of operator of motor vehicle, 5 A.L.R.3d 690.

Notice and hearing before revocation or suspension of driver’s license, necessity and sufficiency of, 60 A.L.R.3d 350.

Validity and construction of legislation authorizing revocation or suspension of operator’s license for “habitual”, “persistent”, or “frequent” violations of traffic regulations, 48 A.L.R.4th 367.

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

39-06.1-10.1. Alternative disposition — Driver training course — Exceptions.

  1. An individual issued a summons or notice to appear under section 39-07-07 may appear before the court and elect to attend a driver training course approved by the director in lieu of entry of points on the licensee’s driving record. An individual who elects to attend the course must so notify the court at the time of posting the bond, which is forfeited even though an election is made under this section. The individual who makes the election shall pay the driver training course fee to the driver training course sponsor. If an individual elects to attend the course, the point penalty of five points or fewer for the violation by section 39-06.1-10 may not be assessed if proof of completion of the course is presented to the department within thirty days after the individual notifies the court of the election. An individual may not make an election under this section if:
    1. That individual has made an election under this section within the twelve months preceding the date of issuance of the summons or notice to appear;
    2. The offense is assigned six or more points; or
    3. The offense is an offense listed in section 39-06.1-05.
  2. An individual making an election under this section forfeits any point reduction option under section 39-06.1-13.

Source:

S.L. 1991, ch. 418, § 1; 2013, ch. 295, § 10.

39-06.1-11. Temporary restricted license — Ignition interlock device.

  1. Except as provided under subsection 2 or 3, if the director has suspended a license under section 39-06.1-10 or has extended a suspension or revocation under section 39-06-43, upon receiving written application from the offender affected, the director may for good cause issue a temporary restricted operator’s license valid for the remainder of the suspension period after seven days of the suspension period have passed.
  2. If the director has suspended a license under chapter 39-20, or after a violation of section 39-08-01 or equivalent ordinance, upon written application of the offender the director may issue a temporary restricted license that takes effect after thirty days of the suspension have been served after a first offense under section 39-08-01 or chapter 39-20, but if the offender is participating in the twenty-four seven sobriety program under chapter 54-12, the director shall issue a temporary restricted license that takes effect after fourteen days of the suspension have been served if the driver is not subject to any unrelated suspension or revocation.
  3. A temporary restricted license must be issued in accordance with subsection 7 if the offender is participating in and compliant with the twenty-four seven sobriety program under chapter 54-12 or if the offender has not committed an offense for a period of one year before the date of the filing of a written application. The application must be accompanied by:
    1. Proof of financial responsibility and a report from an appropriate licensed addiction treatment program and, if prescribed, proof of compliance with attendance rules in an appropriate licensed addiction treatment program; or
    2. If the offender is participating in the drug court program or other court-ordered treatment or sobriety program, a recommendation from the district court.
  4. For a temporary restricted license under subsection 3, the director may conduct a hearing for the purposes of obtaining information, reports, and evaluations from courts, law enforcement, and citizens to determine the offender’s conduct and driving behavior during the prerequisite period of time. The director may require an ignition interlock device be installed in the offender’s vehicle and may require the applicant to submit proof of attendance at a driver training course approved by the director. The director may impose additional conditions as reasonably necessary to ensure compliance.
  5. The director may not issue a temporary restricted license for a period of license revocation or suspension imposed under section 39-06-31. A temporary restricted license may be issued for suspensions ordered under subsection 4 of section 39-06-32 if it could have been issued had the suspension resulted from in-state conduct.
    1. In addition to any restrictions authorized under section 39-06-17, the director may impose any of the following conditions upon the use of a temporary restricted license issued under this section for the use of a motor vehicle by the offender:
      1. To use during the licensee’s normal working hours;
      2. To use for attendance at an appropriate licensed addiction treatment program or a treatment program ordered by a court; or
      3. To use as necessary to prevent the substantial deprivation of the educational, medical, or nutritional needs of the offender or an immediate family member of the offender.
    2. Violation of a restriction imposed according to this section is deemed a violation of section 39-06-17.
    3. This section does not limit the director’s authority to cancel a temporary restricted license for good cause.
  6. If an offender has been charged with, or convicted of, a second or subsequent violation of section 39-08-01 or equivalent ordinance, or if the offender’s license is subject to suspension under chapter 39-20 and the offender’s operator’s license is not subject to an unrelated suspension or revocation, the director shall issue a temporary restricted license to the offender upon the restriction the offender participate in the twenty-four seven sobriety program under chapter 54-12. The offender shall submit an application to the director for a temporary restricted license along with submission of proof of financial responsibility and proof of participation in the twenty-four seven sobriety program to receive a temporary restricted license.
  7. If the director denies a temporary restricted license under this section, or denies a request for a hearing under subsection 4, the applicant may appeal within thirty days after the date of the decision by filing a notice of appeal in the district court in the county where the applicant resides and by serving the notice of appeal on the director. On appeal the district court shall review the application and may authorize presentation of additional evidence.

Source:

S.L. 1973, ch. 301, § 11; 1975, ch. 341, § 4; 1981, ch. 384, § 7; 1983, ch. 415, § 17; 1985, ch. 429, § 6; 1989, ch. 465, § 1; 1991, ch. 419, § 1; 1997, ch. 338, § 1; 2005, ch. 332, § 1; 2007, ch. 325, § 4; 2009, ch. 469, § 4; 2013, ch. 291, § 59; 2013, ch. 292, § 3; 2013, ch. 295, § 11; 2013, ch. 301, § 6; 2019, ch. 319, § 2, effective August 1, 2019.

Note.

This section is set out above to reflect a correction since the 2015 cumulative supplement. In subsection (3) the reference to "subsection 5" was changed to "subsection 7".

Notes to Decisions

Application of Exception in Section 39-06-42.

The “except as provided” language of subsection 1 of N.D.C.C. § 39-06-42 refers to a person whose license has been suspended or revoked but is nevertheless permitted to drive as a result of the issuance of a temporary-restricted license under this section. State v. Grenz, 437 N.W.2d 851, 1989 N.D. LEXIS 63 (N.D. 1989).

DECISIONS UNDER PRIOR LAW

Constitutionality.

Reasonably justified statutory discrimination would not be set aside, and the fact that restricted driving privilege could be granted during a period of license suspension, but not during period of license revocation, was not unconstitutional discrimination against those whose privilege had been revoked. Gableman v. Hjelle, 224 N.W.2d 379, 1974 N.D. LEXIS 134 (N.D. 1974).

Collateral References.

Validity, construction, and application of ignition interlock laws, 15 A.L.R.6th 375.

39-06.1-12. Completion of suspension — Reduction of point total.

If a licensee completes a period of suspension ordered under section 39-06.1-10 or as ordered or recommended by a court of competent jurisdiction, the director shall reduce the point total shown on the licensee’s driving record to eleven points. A suspension must be ordered if that licensee’s point total again reaches twelve or more points.

Source:

S.L. 1973, ch. 301, § 12; 2013, ch. 295, § 12.

Notes to Decisions

Refusal to Reduce Points.

Where it was undisputed that defendant had not paid the reinstatement fee, had not furnished an addiction treatment statement, and had not submitted proof of financial responsibility, the driver’s license division did not err in failing to reduce the number of points against defendant’s license to eleven after his license had been suspended for ninety-one days pursuant to this section or N.D.C.C. § 39-06.1-13(1). State v. Bettenhausen, 460 N.W.2d 394, 1990 N.D. LEXIS 179 (N.D. 1990).

39-06.1-13. Reduction of point total — Other methods.

  1. The director shall reduce the point total shown on any licensee’s driving record by one point for each three-month period during which points are not recorded against the licensee’s driving record for a moving violation or a violation listed in paragraphs 12 through 16 of subdivision a of subsection 3 of section 39-06.1-10. The three-month period must be calculated from the date of entry of the last points against that licensee’s driving record.
  2. The point total shown on a licensee’s driving record must, during any twelve-month period, be reduced by three points when the licensee mails or delivers a certificate to the director indicating successful completion of instruction in a driver training course approved by the director. Successful completion of instruction must be certified to by the sponsoring agency or organization of the driver training course. The reduction in points under this subsection must be solely from a point total accumulated before completion of the necessary hours of driver training instruction, and may not exceed nine points during any three-year period commencing on the date of entry of the last points against the individual’s driving record. If on the date the director receives the certificate of completion of the driver training course from the licensee, that licensee’s driving record contains twelve or more points or, as a minor, the licensee’s driving record contains six points or more, the point reduction under this subsection must be applied after serving the period of suspension or cancellation required by the number of points on the licensee’s record.

Source:

S.L. 1973, ch. 301, § 13; 1975, ch. 339, § 15; 1977, ch. 347, § 5; 1981, ch. 393, § 1; 1985, ch. 429, § 7; 1987, ch. 469, § 1; 1991, ch. 420, § 1; 1993, ch. 386, § 2; 1997, ch. 332, § 8; 2001, ch. 340, § 7; 2013, ch. 295, § 13.

Cross-References.

Licensing substance abuse treatment programs, see ch. 50-31.

Notes to Decisions

Construction.

The unambiguous language of this statute authorizes a reduction of points only from a point total accumulated prior to the completion of driver training instruction; therefore, a driver could not use a defensive driving course taken after his conviction but before Department of Transportation added points to his record to reduce those points. Doyle v. Sprynczynatyk, 2001 ND 8, 621 N.W.2d 353, 2001 N.D. LEXIS 8 (N.D. 2001).

Refusal to Reduce Points.

Where it was undisputed that defendant had not paid the reinstatement fee, had not furnished an addiction treatment statement, and had not submitted proof of financial responsibility, the driver’s license division did not err in failing to reduce the number of points against defendant’s license to eleven after his license had been suspended for ninety-one days pursuant to N.D.C.C. § 39-06.1-12 or subsection 1 of this section. State v. Bettenhausen, 460 N.W.2d 394, 1990 N.D. LEXIS 179 (N.D. 1990).

39-06.1-14. Delivery of license revocation.

Delivery of the order of revocation is deemed to have occurred seventy-two hours after the order is mailed by regular mail to the address of record in the department under section 39-06-20.

Source:

S.L. 1975, ch. 341, § 5; 1995, ch. 372, § 5; 2005, ch. 329, § 4; 2013, ch. 295, § 14; 2017, ch. 265, § 3, effective August 1, 2017.

39-06.1-15. Diplomatic immunities and privileges.

  1. This section applies only to an individual who displays an operator’s license issued by the United States department of state to a police officer or who otherwise claims immunities or privileges under chapter 6 of title 22 of the United States Code with respect to the individual’s violation of any law or ordinance that relates to the operation of a motor vehicle.
  2. If a driver who is subject to this section is stopped by a police officer who has probable cause to believe that the driver has committed a violation, the police officer shall record all relevant information from any operator’s license or identification card, including an operator’s license or identification card issued by the United States department of state; as soon as practicable contact the United States department of state office in order to verify the driver’s status and immunity, if any; and forward the following to the bureau of diplomatic security office of foreign missions of the United States department of state:
    1. A vehicle accident report, if the driver was involved in a vehicle accident;
    2. A copy of the citation or other charging document if a citation or other charging document was issued to the driver; and
    3. A written report of the incident if a citation or other charging document was not issued to the driver.
  3. This section does not prohibit or limit the application of any law to a criminal or motor vehicle violation by an individual who has or claims immunities or privileges under title 22 of the United States Code.

Source:

S.L. 2001, ch. 343, § 1; 2013, ch. 295, § 15.

CHAPTER 39-06.2 Commercial Driver’s Licenses

39-06.2-01. Uniform Commercial Driver’s License Act.

The purpose of this chapter is to implement the federal Commercial Motor Vehicle Safety Act of 1986 [title XII of Pub. L. 99-570, 49 U.S.C. 2701, repealed] and Motor Carrier Safety Improvement Act of 1999 [Pub. L. 106-159; 113 Stat. 1748; 49 U.S.C. 113 et seq.] and reduce or prevent commercial motor vehicle accidents, fatalities, and injuries by:

  1. Permitting commercial drivers to hold only one license;
  2. Disqualifying commercial drivers who have committed certain serious traffic violations or other specified offenses; and
  3. Strengthening commercial driver’s licensing and testing standards.

This chapter is a remedial law which should be liberally construed to promote the public health, safety, and welfare. To the extent that this chapter conflicts with general driver’s licensing provisions, this chapter prevails. Where this chapter is silent, the general driver’s licensing provisions apply.

Source:

S.L. 1989, ch. 461, § 4; 2001, ch. 344, § 1.

Note.

The federal Commercial Motor Vehicle Safety Act of 1986, Title XII of Pub. L. 99-570, 49 USCS 2701, has been repealed, except for rights and duties that matured, penalties that were incurred, and proceedings that were begun before its repeal. For similar provisions, now see 49 USCS 31101 et seq.

39-06.2-02. Definitions.

As used in this chapter, unless the context or subject matter otherwise requires:

  1. “Alcohol” means any substance containing any form of alcohol, including ethanol, methanol, propanol, and isopropanol.
  2. “Alcohol concentration” means:
    1. The number of grams of alcohol per one hundred milliliters of blood;
    2. The number of grams of alcohol per two hundred ten liters of breath; or
    3. The number of grams of alcohol per sixty-seven milliliters of urine.
  3. “Commercial learner’s permit” means a permit issued under subsection 4 of section 39-06.2-07.
  4. “Commercial driver’s license” means a license issued under this chapter which authorizes an individual to drive a class of commercial motor vehicle.
  5. “Commercial driver’s license information system” means the information system established under the Commercial Motor Vehicle Safety Act to serve as a clearinghouse for locating information related to the licensing and identification of commercial motor vehicle drivers.
  6. “Commercial motor vehicle” means a motor vehicle or combination of motor vehicles designed or used to transport passengers or property:
    1. If the gross combination weight rating or gross combination weight is twenty-six thousand one pounds [11793.86 kilograms] or more, whichever is greater, provided the towed unit has a gross vehicle weight rating or gross vehicle weight of more than ten thousand pounds [4536 kilograms], whichever is greater;
    2. If the vehicle has a gross vehicle weight rating or gross vehicle weight of more than twenty-six thousand pounds [11793.40 kilograms], whichever is greater;
    3. If the vehicle is designed to transport sixteen or more passengers, including the driver; or
    4. If the vehicle is transporting hazardous materials and is required to be placarded in accordance with 49 CFR part 172, subpart F or any quantity of a material listed as a select agent or toxin in 42 CFR part 73.
  7. “Controlled substance” means any substance so classified under section 802(6) of the Controlled Substances Act [21 U.S.C. 802(6)], and includes all substances listed on schedules I through V, of 21 CFR part 1308, as they may be revised from time to time.
  8. “Conviction” means an unvacated adjudication of guilt, or a determination that an individual has violated or failed to comply with the law in a court of original jurisdiction or an authorized administrative tribunal, an unvacated forfeiture of bail or collateral deposited to secure the individual’s appearance in court, the payment of a fine or court cost, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended, or probated.
  9. “Covered farm vehicle” means a straight truck or articulated vehicle:
    1. Registered in a state with a licensed plate or other designation issued by the state of registration which allows law enforcement officials to identify it as a farm vehicle;
    2. Operated by the owner or operator of a farm or ranch or an employee or family member of an owner or operator of a farm or ranch;
    3. Used to transport agricultural commodities, livestock, machinery, or supplies to or from a farm or ranch; and
    4. Not used in for-hire motor carrier operations; however, for-hire motor carrier operations do not include the operation of a vehicle meeting the requirements of subdivisions a, b, and c of this subsection by a tenant pursuant to a crop share farm lease agreement to transport the landlord’s portion of the crops under that agreement.
    5. Meeting the requirements of subdivisions a, b, c, and d of this subsection:
      1. With a gross vehicle weight or gross vehicle weight rating, whichever is greater, of twenty-six thousand one pounds [11793.86 kilograms] or less may utilize the exemptions in 40 CFR 390.39 anywhere in the United States; or
      2. With a gross vehicle weight or gross vehicle weight rating, whichever is greater, or more than twenty-six thousand one pounds [11793.86 kilograms] may utilize the exemptions in 40 CFR 390.39 anywhere in the state of registration or across the state lines within one hundred fifty air miles of the farm or ranch with respect to which the vehicle is being operated.
  10. “Disqualification” means a withdrawal of the privilege to drive a commercial motor vehicle.
  11. “Downgrade” means:
    1. A state allows the driver to change the driver’s self-certification to interstate, but operating exclusively in transportation or operation excepted from 49 CFR part 391, as provided in 390.3(f), 391.2, 391.68, or 398.3;
    2. A state allows the driver to change the driver’s self-certification to intrastate only, if the driver qualifies under the state’s physical qualification requirements for intrastate only;
    3. A state allows the driver to change the driver’s certification to intrastate, but operating exclusively in transportation or operations excepted from all or part of the state driver’s qualification; or
    4. A state removes the commercial driver’s license privilege from the driver’s license.
  12. “Drive” means to drive, operate, or be in physical control of a motor vehicle.
  13. “Driver” means an individual who drives, operates, or is in physical control of a commercial motor vehicle, or who is required to hold a commercial driver’s license.
  14. “Driver’s license” means a license issued by a state to an individual which authorizes the individual to drive a motor vehicle.
  15. “Drug” means any drug or substance or combination of drugs or substances which renders an individual incapable of safely driving, and includes any controlled substance.
  16. “Electronic device” includes a cellular telephone, personal digital assistant, pager, computer, or any other device used to input, write, send, receive, or read text.
  17. “Employer” means any person, including the United States, a state, or a political subdivision of a state, who owns or leases a commercial motor vehicle, or assigns an individual to drive a commercial motor vehicle.
  18. “Fatality” means the death of an individual as a result of a motor vehicle accident.
  19. “Felony” means any offense under state or federal law which is punishable by death or imprisonment for a term exceeding one year.
  20. “Foreign commercial driver” means an individual licensed to operate a commercial motor vehicle by an authority outside the United States or a citizen of a foreign country who operates a commercial motor vehicle in the United States.
  21. “Foreign jurisdiction” means any jurisdiction other than a state of the United States.
  22. “Gross vehicle weight rating” means the value specified by the manufacturer as the maximum loaded weight of a single or a combination or articulated vehicle. The gross vehicle weight rating of a combination or articulated vehicle, commonly referred to as the “gross combination weight rating”, is the gross vehicle weight rating of the power unit plus the gross vehicle weight rating or actual weight of the towed unit or units.
  23. “Hazardous materials” means any material that has been designated as hazardous under 49 U.S.C. 5103 and is required to be placarded under subpart F of 49 CFR part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR part 73.
  24. “Imminent hazard” means the existence of a condition of vehicle, employee, or commercial motor vehicle operations which substantially increases the likelihood of serious injury or death if not discontinued immediately or a condition relating to hazardous materials which presents a substantial likelihood that death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment may occur before the reasonably foreseeable completion date of a formal proceeding begun to lessen the risk of that death, illness, injury, or endangerment.
  25. “Mobile telephone” means a mobile communication device that falls under or uses any commercial mobile radio service, as defined in regulations of the federal communications commission in 47 CFR 20.3. The term does not include two-way and citizens band radio services.
  26. “Motor vehicle” means every vehicle that is self-propelled, and every vehicle that is propelled by electric power obtained from overhead trolley wires but not operated upon rails, except vehicles moved solely by human power and motorized wheelchairs.
  27. “Noncommercial motor vehicle” means a motor vehicle or combination of motor vehicles not defined by the term commercial motor vehicle.
  28. “Nondomiciled commercial driver’s license” means a commercial driver’s license or a commercial learner’s permit issued by a state to an individual domiciled in a foreign country meeting the requirements of 49 CFR 383.23(b)(1).
  29. “Out-of-service order” means a temporary prohibition against driving a commercial motor vehicle.
  30. “Serious traffic violation” means a conviction when operating a commercial motor vehicle of:
    1. Excessive speeding, involving a single charge of any speed fifteen miles [24.14 kilometers] per hour or more, above the posted speed limit;
    2. Reckless driving, as defined under section 39-08-03 or local ordinance, including charges of driving a commercial motor vehicle in willful or wanton disregard for the safety of an individual or property, improper or erratic traffic lane changes, or following the vehicle ahead too closely;
    3. A violation of any state or local law related to motor vehicle traffic control, other than a parking violation, arising in connection with a fatal accident;
    4. Driving a commercial motor vehicle without obtaining a commercial driver’s license or commercial learner’s permit;
    5. Driving a commercial motor vehicle without a commercial driver’s license or commercial learner’s permit in the driver’s possession. An individual who provides proof to the enforcement authority that issued the citation, by the date the individual must appear in court or pay a fine for such violation, that the individual held a valid commercial driver’s license or commercial learner’s permit on the date the citation was issued, is not guilty of this offense;
    6. Driving a commercial motor vehicle without the proper class of commercial driver’s license, endorsement, or commercial learner’s permit, for the specific vehicle group being operated or for the passengers or type of cargo being transported;
    7. Violating a state or local law or ordinance prohibiting texting while driving; or
    8. Violating a state law or local law or ordinance on motor vehicle traffic control restricting or prohibiting the use of a hand-held mobile telephone while driving a commercial motor vehicle.
  31. “State” means a state of the United States or the District of Columbia.
  32. “Tank vehicle” means any commercial motor vehicle that is designed to transport any liquid or gaseous material within one or more tanks having an individual rated capacity of more than one hundred nineteen gallons [450.46 liters] and an aggregate rated capacity of one thousand gallons [3785.41 liters] or more that is either permanently or temporarily attached to the vehicle or the chassis. A commercial motor vehicle transporting an empty storage container tank, not designed for transportation, with a rated capacity of one thousand gallons [3785.41 liters] or more that is temporarily attached to a flatbed trailer is not considered a tank vehicle.
  33. “Texting” means manually entering alphanumeric text into, or reading text from, an electronic device. This action includes short message service, electronic mail, instant messaging, a command or request to access a worldwide web page, pressing more than a single button to initiate or terminate a voice communication using a mobile telephone or engaging in any other form of electronic text retrieval or entry, for present or future communication. “Texting” does not include:
    1. Pressing a single button to initiate or terminate a voice communication using a mobile telephone;
    2. Inputting, selecting, or reading information on a global positioning system or navigation system; or
    3. Using a device capable of performing multiple functions, including fleet management systems, dispatching devices, smartphones, citizens’ band radios, or music players, for a purpose that is not otherwise prohibited in 49 CFR part 383.
  34. “Third-party skills test examiner” means an individual employed by a third-party tester who is authorized by the state to administer the skills tests in 49 CFR part 383, subparts G and H.
  35. “Third-party tester” means a person, including another state, a motor carrier, a private driver training facility or other private institution, or a political subdivision authorized by the state to employ skills test examiners to administer the skills tests in 49 CFR part 383, subparts G and H.
  36. “United States” means the fifty states and the District of Columbia.
  37. “Use a hand-held mobile telephone” means using at least one hand to hold a mobile telephone to conduct a voice communication; dialing or answering a mobile telephone by pressing more than a single button; or reaching for a mobile telephone in a manner that requires a driver to maneuver so that the driver is no longer in a seated driving position, restrained by a seatbelt that is installed under 49 CFR 393.93 and adjusted in accordance with the vehicle manufacturer’s instructions.

Source:

S.L. 1989, ch. 461, § 4; 1997, ch. 332, § 9; 2003, ch. 312, § 4; 2003, ch. 322, § 4; 2005, ch. 329, § 5; 2009, ch. 334, § 1; 2011, ch. 278, §§ 1, 2; 2013, ch. 298, § 2; 2015, ch. 265, § 1, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 265, S.L. 2015 became effective August 1, 2015.

Notes to Decisions

Conviction.

Suspension of a driver’s license in 1990 was a conviction under N.D.C.C. § 39-06.2-10(8) and N.D.C.C. § 39-06.2-02(8) because a transportation department was an authorized administrative tribunal under N.D.C.C. § 39-06.2-10(8), and the definition of conviction under N.D.C.C. § 39-06.2-02(8) was used instead of the definition of conviction in N.D.C.C. § 39-06-30 since N.D.C.C. § 39-06.2-02(8) was the more specific statute; therefore, a lifetime suspension of a commercial license was proper for two driving under the influence convictions. Bienek v. DOT, 2007 ND 117, 736 N.W.2d 492, 2007 N.D. LEXIS 117 (N.D. 2007).

Definition of “conviction” in N.D.C.C. § 39-06.2-02(8) is a special provision applicable to commercial driver’s licenses that conflicts with the definition of “conviction” in N.D.C.C. § 39-06-30, a general provision applicable to motor vehicle operator’s licenses; under statutory construction principles, the definition of “conviction” found in N.D.C.C. § 39-06.2-02(8) prevails over the definition of “conviction” found in N.D.C.C. § 39-06-30. Therefore, the definition of “conviction” found in N.D.C.C. § 39-06.2-02(8) must be used when interpreting N.D.C.C. § 39-06.2-10(8). Bienek v. DOT, 2007 ND 117, 736 N.W.2d 492, 2007 N.D. LEXIS 117 (N.D. 2007).

N.D.C.C. § 39-06.2-10(7) was not void for vagueness due to differing definitions of “conviction” in N.D.C.C. §§ 39-06.2-02(8) and 39-06-30 (repealed) because it had been unambiguously held that a “conviction,” for suspension purposes, could arise from an administrative decision, and this judicial determination was considered when deciding if the public had notice of proscribed conduct. Hamre v. N.D. DOT, 2014 ND 23, 842 N.W.2d 865, 2014 N.D. LEXIS 29 (N.D. 2014).

Administrative suspension of a driver’s noncommercial driving privileges was a “conviction,” under N.D.C.C. § 39-06.2-10(7), for purposes of disqualifying the driver’s commercial driver’s license, because (1) N.D.C.C. § 39-06.2-02(8)’ s special provision defining “conviction” as administrative tribunal determinations had to be used when considering the driver’s first DUI conviction, and (2) the driver’s license’s administrative suspension was separate from criminal proceedings on the driver’s dismissed DUI charge. Hamre v. N.D. DOT, 2014 ND 23, 842 N.W.2d 865, 2014 N.D. LEXIS 29 (N.D. 2014).

39-06.2-03. Limitation on number of driver’s licenses.

No person who drives a commercial motor vehicle may have more than one driver’s license.

Source:

S.L. 1989, ch. 461, § 4.

39-06.2-04. Notification required by driver.

  1. Notification of convictions.
    1. To state: Any driver holding a commercial driver’s license issued by this state who is convicted of violating any state or local ordinance relating to motor vehicle traffic control in any other state or any federal, provincial, territorial, or municipal law of Canada, other than parking violations, must notify the director in the manner specified by the director within thirty days of the date of conviction.
    2. To employers: Any driver holding a commercial driver’s license issued by this state who is convicted of violating any state law or local ordinance relating to motor vehicle traffic control in this or any other state or any federal, provincial, territorial, or municipal law of Canada, other than parking violations, must notify the driver’s employer in writing of the conviction within thirty days of the date of conviction.
  2. Notification of suspensions, revocations, and cancellations. Any driver whose commercial driver’s license is suspended, revoked, or canceled by any state, or who loses the privilege to drive a commercial motor vehicle in any state for any period, including being disqualified from driving a commercial motor vehicle, or who is subject to an out-of-service order, must notify the employer of that fact before the end of the business day following the day the driver received notice of that fact.
  3. Notification of previous employment. Any person who applies to be a commercial motor vehicle driver must provide the employer, at the time of the application, with the following information for the ten years preceding the date of application:
    1. A list of the names and addresses of the applicant’s previous employers for which the applicant was a driver of a commercial motor vehicle;
    2. The dates between which the applicant drove for each employer; and
    3. The reason for leaving that employer.

The applicant must certify that all information furnished is true and complete. An employer may require an applicant to provide additional information.

Source:

S.L. 1989, ch. 461, § 4; 1993, ch. 383, § 2.

39-06.2-05. Employer responsibilities.

  1. Each employer shall require the applicant to provide the information specified in section 39-06.2-04.
  2. No employer may knowingly allow, permit, or authorize a driver to drive a commercial motor vehicle during any period:
    1. In which the driver’s commercial driver’s license is suspended, revoked, or canceled by any state or in which the driver is currently disqualified from driving a commercial vehicle or subject to an out-of-service order in any state; or
    2. In which the driver has more than one driver’s license.

Source:

S.L. 1989, ch. 461, § 4.

39-06.2-06. Commercial driver’s license required.

  1. Except when driving under a commercial learner’s permit and accompanied by the holder of a commercial driver’s license valid for the vehicle being driven, an individual may not drive a commercial motor vehicle on the highways of this state unless the individual holds and is in immediate possession of a commercial driver’s license with applicable endorsements valid for the vehicle the individual is driving. This subsection does not apply:
    1. When the vehicle being driven is a house car or a vehicle towing a travel trailer being used solely for personal rather than commercial purposes.
    2. When the vehicle being driven constitutes emergency or firefighting equipment necessary to the preservation of life or property.
    3. When the vehicle is being driven for military purposes, subject to any limitations imposed by 49 CFR part 383.3(c).
    4. When the vehicle being driven is a covered farm vehicle as defined in this chapter.
  2. No person may drive a commercial motor vehicle on the highways of this state while the person’s driving privilege is suspended, revoked, or canceled, while subject to a disqualification.
  3. The provisions of this chapter are waived, as to farm-to-market operations by farmers, but limited to those operators of a farm vehicle that is:
    1. Controlled and operated by a farmer.
    2. Used to transport either agricultural products, including trees, farm machines, farm supplies, or both, to or from a farm.
    3. Not used in the operations of a common or contract carrier.
    4. Used within one hundred fifty miles [241.40 kilometers] of the person’s farm.
  4. The provisions of this chapter are waived as to an individual employed by and operating a vehicle at the request of and within a political subdivision, with a population of less than three thousand, during an emergency declared by that political subdivision for the removal of snow and ice. This waiver only applies when the regularly employed driver is unavailable or the employing political subdivision determines that additional assistance is required.
  5. Pursuant to the limitations imposed by 49 CFR part 383.3, the required knowledge and skills tests may be waived and a restricted commercial driver’s license issued for a single period of one hundred eighty days or two periods of ninety days within a twelve-month period to employees of agrichemical businesses, custom harvesters, farm retail outlets and suppliers, including retailers and suppliers of trees, and livestock feeders.
  6. Pursuant to the limitations imposed by 49 Code of Federal Regulations part 383.3, the holder of a class A commercial driver’s license is exempt from the hazardous materials endorsement, if the licenseholder is:
    1. Acting within the scope of the licenseholder’s employment, and within the state of domicile, or another state with a hazardous materials enforcement exemption, as an employee of a custom harvester operation, agrichemical business, farm retail outlet and supplier, or livestock feeder; and
    2. Operating a service vehicle that is transporting diesel in a quantity of one thousand gallons [3785 liters] or less which is clearly marked with “flammable” or “combustible” placard, as appropriate.
  7. In accordance with title 49, Code of Federal Regulations, part 384, section 230, the department may not issue a commercial driver’s license to an individual who obtains a commercial learner’s permit unless the individual complies with title 49, Code of Federal Regulations, part 380, subpart F.

Source:

S.L. 1989, ch. 461, § 4; 2001, ch. 345, § 1; 2003, ch. 312, § 5; 2007, ch. 326, § 1; 2007, ch. 327, § 1; 2013, ch. 298, § 3; 2013, ch. 299, § 1; 2015, ch. 265, § 2, effective August 1, 2015; 2017, ch. 267, § 1, effective March 9, 2017; 2019, ch. 320, § 1, effective August 1, 2019.

Effective Date.

The 2015 amendment of this section by section 2 of chapter 265, S.L. 2015 became effective August 1, 2015.

39-06.2-07. Commercial driver’s license qualification standards.

  1. An individual may not be issued a commercial driver’s license unless that individual is a resident of this state; has passed a knowledge and skills test that may include a skills test or knowledge test administered by another state or skills test or knowledge test results electronically submitted by another state, for driving a commercial motor vehicle which complies with minimum federal standards established by federal regulations enumerated in 49 CFR part 383, subparts G and H; and has satisfied all other requirements of state and federal law, including the Commercial Motor Vehicle Safety Act. The tests must be prescribed and conducted by the director. The applicant shall pay the fee listed in section 39-06.2-19 for each of the tests.
  2. The director may authorize third-party testing, if:
    1. The test is the same as that which would otherwise be administered by this state; and
    2. The third party has entered an agreement with this state which complies with requirements of 49 CFR part 383.75.
  3. The director may waive the skills test specified in this section for a commercial driver’s license applicant who meets the requirements of 49 CFR part 383.77.
  4. A commercial driver’s license or commercial learner’s permit may not be issued to an individual while the individual is subject to a disqualification from driving a commercial motor vehicle or while the individual’s driver’s license is suspended, revoked, or canceled in any state. A commercial driver’s license may not be issued to an individual who has a commercial driver’s license issued by any other state unless the individual first surrenders all licenses from other states. The director shall notify the issuing state of the surrender of the license.
  5. An individual who has been a resident of this state for thirty days may not drive a commercial motor vehicle under the authority of a commercial driver’s license issued by another jurisdiction.
    1. A commercial learner’s permit may be issued to an individual who holds a valid class D operator’s license who has passed the vision and written tests required for an equivalent commercial driver’s license.
    2. The commercial learner’s permit may not be issued for a period to exceed one year. After this initial period, the director may issue a letter of authority that authorizes the applicant to drive to a driver’s license office, complete the road test, and return home, or the individual may retake the knowledge test and be issued another commercial learner’s permit valid for one year. The holder of a permit, unless otherwise disqualified, may drive a commercial motor vehicle only when accompanied by the holder of a commercial driver’s license valid for the type of vehicle driven who occupies a seat beside the individual for the purpose of giving instruction in driving the commercial motor vehicle. A holder of a permit is not eligible for a license until that individual has had the permit issued for at least fourteen days.
  6. A commercial learner’s permitholder may not operate a commercial motor vehicle:
    1. Transporting passengers requiring a passenger endorsement;
    2. Transporting passengers requiring a schoolbus endorsement;
    3. Requiring a tank vehicle endorsement unless the tank is empty and does not contain residue of hazardous materials; or
    4. Transporting hazardous materials, regardless of need for hazardous materials endorsement.

Source:

S.L. 1989, ch. 461, § 4; 2011, ch. 278, § 4; 2013, ch. 298, § 4; 2013, ch. 300, § 1; 2015, ch. 266, § 1, effective August 1, 2015; 2019, ch. 320, § 2, effective August 1, 2019; 2019, ch. 321, § 1, effective August 1, 2019; 2021, ch. 280, § 4, effective August 1, 2021.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 266, S.L. 2015 became effective August 1, 2015.

Note.

Section 39-06.2-07 was amended 2 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 2 of Chapter 320, Session Laws 2019, House Bill 1098; and Section 1 of Chapter 321, Session Laws 2019, Senate Bill 2121.

39-06.2-08. Application for commercial driver’s license.

  1. The application for a commercial driver’s license or commercial learner’s permit must include the following:
    1. The full name and current residence and mailing address of the applicant;
    2. A physical description of the applicant, including sex, height, weight, and eye and hair color;
    3. Date of birth;
    4. The applicant’s social security number, unless the application is for a nondomiciled commercial driver’s license and the applicant is a resident of a foreign jurisdiction;
    5. The applicant’s signature;
    6. The certifications including those required by 49 CFR part 383.71;
    7. Any other information required by the director; and
    8. A consent to release driving record information.
  2. The application must be accompanied by an application fee listed in section 39-06.2-19. The application must contain any other information as the director may require to improve identity security. The director shall require an applicant for a commercial license or commercial learner’s permit to provide documentary evidence that confirms to the satisfaction of the director the true identity, date of birth, and legal presence of the applicant and provide a social security card or other satisfactory evidence of a social security number and proof of residence address, if not previously provided or if there are changes to the information already on file.
  3. When the holder of a commercial driver’s license changes the holder’s name or residence address, an application for a substitute license must be made under section 39-06-18.
  4. Any individual who knowingly falsifies information or certifications required under subsection 1 is subject to suspension, revocation, cancellation, or disqualification of the individual’s commercial driver’s license or pending application for a period of at least sixty consecutive days.

Source:

S.L. 1989, ch. 461, § 4; 2009, ch. 329, § 5; 2009, ch. 334, § 2; 2011, ch. 278, § 5; 2013, ch. 298, § 5; 2013, ch. 300, § 2; 2017, ch. 256, § 9, effective August 1, 2017.

39-06.2-08.1. Commercial driver’s license medical certification requirements.

  1. The director may issue a commercial learner’s permit or commercial driver’s license to a North Dakota resident who meets the medical qualification and certification requirements pursuant to the limitations of 49 CFR parts 383 and 391.
  2. Every individual who makes application for a commercial learner’s permit or commercial driver’s license shall certify that the individual meets the qualification requirements contained in 49 CFR part 391 or certify that the individual’s commercial transportation is entirely in intrastate commerce and is not subject to 49 CFR part 391.
  3. The application will contain the following categories to comply with the commercial driver’s certification requirements:
    1. Interstate and subject to 49 CFR part 391.
    2. Interstate, but operating exclusively in transportation or operations excepted under 49 CFR part 390.3(f), 391.2, 391.68, or 398.3.
    3. Intrastate and subject to state driver’s qualification requirements.
    4. Intrastate, but operating exclusively in transportation or operations excepted from all or part of the state driver’s qualification requirements.
  4. Every individual who makes application for or holds a commercial learner’s permit or commercial driver’s license shall submit a copy of the individual’s medical certificate to the director unless the commercial transportation is not subject to 49 CFR part 391.
  5. The director will downgrade or remove the commercial driving privilege from the license if the medical certificate expires and the driver does not change the driver’s certification if the driver is no longer subject to 49 CFR part 391.
  6. If the driver provides a current medical certification, the director shall upgrade without retesting the license of a driver which was downgraded under this section.

Source:

S.L. 2011, ch. 278, § 3; 2013, ch. 298, § 6.

39-06.2-09. Commercial driver’s license.

  1. The commercial driver’s license must be marked “commercial driver’s license”, and must be, to the maximum extent practicable, tamper proof. The license must include the following information:
    1. The name and residential address of the individual;
    2. The individual’s color photograph;
    3. A physical description of the individual, including sex, height, and eye color;
    4. Date of birth;
    5. A distinguishing number assigned to the individual;
    6. The individual’s signature;
    7. The class or type of commercial motor vehicle or vehicles which the individual is authorized to drive together with any endorsements or restrictions;
    8. The name of this state; and
    9. The dates between which the license is valid.
  2. The director may issue a nondomiciled commercial driver’s license under the limitations of 49 CFR 383 including waiving the social security number requirement. The face of the license must be marked “nondomiciled” in accordance with 49 CFR 383.153(c).
  3. Commercial driver’s licenses may be issued with the following classifications, endorsements, and restrictions. The holder of a valid commercial driver’s license may drive all vehicles in the class for which that license is issued and all lesser classes of vehicles except motorcycles. Vehicles for which an endorsement is required may not be driven unless the proper endorsement appears on the license. The requirements of placarding vehicles transporting hazardous materials under subparagraph b of paragraph 3 of subdivision a and the endorsement required under paragraph 1 of subdivision b do not apply to the operator of a farm vehicle if the vehicle is controlled and operated by a farmer and used to transport hazardous materials in the form of farm supplies within one hundred fifty miles [241.40 kilometers] of the farm and is not used in the operations of a common or contract carrier.
    1. The classifications of commercial driver’s licenses are:
      1. A class A license. This license allows the operation of any combination of vehicles with a gross vehicle weight rating of more than twenty-six thousand pounds [11793.40 kilograms], if the gross vehicle weight rating of the vehicles being towed is in excess of ten thousand pounds [4535.92 kilograms].
      2. A class B license. This license allows the operation of a single vehicle with a gross vehicle weight rating of more than twenty-six thousand pounds [11793.40 kilograms], and this vehicle towing a vehicle not in excess of ten thousand pounds [4535.92 kilograms].
      3. A class C license. This license allows the operation of a single vehicle with a gross vehicle weight rating of twenty-six thousand pounds [11793.40 kilograms] or less or this vehicle towing a vehicle with a gross vehicle weight rating not in excess of ten thousand pounds [4535.92 kilograms] comprising:
        1. Vehicles designed to transport sixteen or more passengers, including the driver; and
        2. Vehicles used in the transportation of hazardous materials which requires the vehicle to be placarded under 49 CFR part 172, subpart F.
    2. Endorsements and restrictions include:
      1. “H” that authorizes the driver to drive a vehicle transporting hazardous materials.
      2. “T” that authorizes driving double and triple trailers.
      3. “P” that authorizes driving vehicles carrying passengers.
      4. “N” that authorizes driving tank vehicles.
      5. “X” that authorizes driving combinations of tank vehicles and hazardous material vehicles.
      6. “S” that authorizes driving a schoolbus.
    3. Other restrictions may be placed upon a commercial driver’s license, under section 39-06-17. The applicant shall pay a fee listed in section 39-06.2-19 for each endorsement.
  4. Before issuing a commercial driver’s license, the director shall obtain driving record information through the commercial driver’s license information system, the national driver’s register, and from each state in which the individual has been licensed.
  5. Within ten days after issuing a commercial driver’s license, the director shall notify the commercial driver’s license information system of that fact, providing all information required to ensure identification of the individual.
  6. A commercial driver’s license issued under this chapter expires in the manner provided for operator’s licenses under section 39-06-19.
  7. An individual applying for renewal of a commercial driver’s license must complete the application form required by subsection 1 of section 39-06.2-08, and provide updated information and required certifications. For an applicant to retain a hazardous materials endorsement, the applicant must take and pass the written test for a hazardous materials endorsement.
  8. A class A, B, or C license may not be issued to an individual under eighteen years of age, except a class A, B, or C type license specially restricted to use for custom harvest purposes must be issued to an individual at least sixteen years of age who satisfactorily completes the appropriate examinations.

Source:

S.L. 1989, ch. 461, § 4; 2001, ch. 37, § 6; 2001, ch. 344, § 2; 2009, ch. 328, § 3; 2009, ch. 334, § 3; 2013, ch. 291, § 60, ch. 298, § 7; 2013, ch. 300, § 3; 2013.

39-06.2-09.1. Nondomiciled commercial license.

  1. The department may issue a nondomiciled commercial driver’s license to an applicant who does not present a social security card as required by section 39-06.2-08 but who otherwise meets the requirements for a nondomiciled commercial driver’s license. A license issued under this subsection is valid only during the period of time of the applicant’s authorized stay in the United States. The license may be renewed only upon presentation of valid documentary evidence that the status has been extended. The department shall renew without a skills or knowledge test a nondomiciled commercial license that has been expired for a duration not longer than one year.
  2. The fee for a nondomiciled commercial driver’s license is listed in section 39-06.2-19.

Source:

S.L. 2009, ch. 334, § 4; 2013, ch. 298, § 8; 2013, ch. 300, § 4.

39-06.2-10. Disqualification and cancellation.

  1. An individual is disqualified from driving a commercial motor vehicle for a period of not less than one year if convicted of a first violation of:
    1. Driving a commercial motor vehicle under the influence of alcohol or drugs;
    2. Leaving the scene of an accident involving a commercial motor vehicle driven by the individual in violation of section 39-08-04, 39-08-05, 39-08-07, or 39-08-09;
    3. Using a commercial motor vehicle in the commission of any felony as defined in this chapter;
    4. Refusal to submit to a test to determine the driver’s alcohol concentration while driving a commercial motor vehicle; or
    5. Driving or being in actual physical control of a commercial motor vehicle while the alcohol concentration of the individual’s blood, breath, or urine is four one-hundredths of one percent or more by weight.
  2. An individual is disqualified for a period of not less than sixty days for providing false information to the department related to the issuance of a commercial permit or commercial license or for a period of not less than one year if convicted of fraud related to the issuance of a commercial driver’s permit or license.
  3. An individual is disqualified for life if convicted of two or more violations of any of the offenses specified in subsection 1, 8, 10, or 12, or any combination of those offenses, arising from two or more separate incidents. Only offenses committed while operating a commercial motor vehicle after July 1, 1989, may be considered in applying this subsection. Only offenses committed while operating a noncommercial motor vehicle after August 1, 2003, may be considered in applying this subsection.
  4. The director may adopt rules under section 39-06.2-14, establishing guidelines, including conditions, under which a disqualification for life under subsections 3, 9, 11, and 13 may be reduced to a period of not less than ten years.
  5. An individual is disqualified from driving a commercial motor vehicle for life who uses a commercial motor vehicle in the commission of any felony involving the manufacture, distribution, or dispensing of a controlled substance, or possession with intent to manufacture, distribute, or dispense a controlled substance.
  6. An individual is disqualified from driving a commercial motor vehicle for a period of not less than sixty days if convicted of two serious traffic violations, or one hundred twenty days if convicted of three serious traffic violations, committed in a commercial motor vehicle arising from separate incidents occurring within a three-year period.
  7. Disqualification for railroad-highway grade crossing violation:
    1. A driver who is convicted of driving a commercial motor vehicle in violation of a federal, state, or local law or regulation pertaining to any one of the following six offenses at a railroad-highway grade crossing is disqualified for the period of time specified in subdivision b:
      1. For drivers who are not required to always stop, failing to slow down and check that the tracks are clear of an approaching train;
      2. For drivers who are not required to always stop, failing to stop before reaching the crossing, if the tracks are not clear;
      3. For drivers who are always required to stop, failing to stop before driving onto the crossing;
      4. For all drivers, failing to have sufficient space to drive completely through the crossing without stopping;
      5. For all drivers, failing to obey a traffic control device or the directions of an enforcement official at the crossing; and
      6. For all drivers, failing to negotiate a crossing because of insufficient undercarriage clearance.
    2. Duration of disqualification for a railroad-highway grade crossing violation:
      1. A driver is disqualified for not less than sixty days if the driver is convicted of a first violation of a railroad-highway grade crossing violation.
      2. A driver is disqualified for not less than one hundred twenty days if, during any three-year period, the driver is convicted of a second railroad-highway grade crossing violation in separate incidents.
      3. A driver is disqualified for not less than one year if, during any three-year period, the driver is convicted of a third or subsequent railroad-highway grade crossing violation in separate incidents.
  8. For a first conviction of driving while under the influence of alcohol or being under the influence of a controlled substance or refusal to be tested while operating a noncommercial motor vehicle, a holder of a commercial driver’s license or learner’s permit must be disqualified from operating a commercial motor vehicle for one year.
  9. For a second or subsequent conviction of driving while under the influence or being under the influence of a controlled substance or refusal to be tested while operating a noncommercial motor vehicle, a holder of a commercial driver’s license or learner’s permit must be disqualified from operating a commercial motor vehicle for life.
  10. For a first conviction for leaving the scene of an accident while operating a noncommercial motor vehicle, a holder of a commercial driver’s license or learner’s permit must be disqualified from operating a commercial motor vehicle for one year.
  11. For a second or subsequent conviction for leaving the scene of an accident while operating a noncommercial motor vehicle, a holder of a commercial driver’s license or learner’s permit must be disqualified from operating a commercial motor vehicle for life.
  12. For a first conviction for using a vehicle to commit a felony while operating a noncommercial motor vehicle, a holder of a commercial driver’s license or learner’s permit must be disqualified from operating a commercial motor vehicle for one year.
  13. For a second or subsequent conviction for using a vehicle to commit a felony while operating a noncommercial motor vehicle, a holder of a commercial driver’s license or learner’s permit must be disqualified from operating a commercial motor vehicle for life.
  14. For a conviction for using a vehicle in the commission of a felony involving manufacturing, distributing, or dispensing a controlled substance while operating a commercial motor vehicle or a noncommercial motor vehicle, a holder of a commercial driver’s license or learner’s permit must be disqualified from operating a commercial motor vehicle for life.
  15. An individual who is convicted of using a commercial motor vehicle in the commission of a felony involving an act or practice of severe forms of trafficking of persons as defined in the federal Trafficking Victims Protection Reauthorization Act of 2017 [Pub. L. 115-427, 132 Stat. 5503; 22 U.S.C. 7102] is disqualified permanently from driving a commercial motor vehicle, without the possibility of reinstatement.
  16. For a second conviction of any combination of two serious traffic violations, in a separate incident within a three-year period while operating a noncommercial vehicle, a learner’s permit or commercial driver’s license holder must be disqualified from operating a commercial motor vehicle, if the conviction results in the revocation, cancellation, or suspension of the learner’s permit or commercial driver’s license holder’s license or noncommercial driving privileges, for a period of sixty days.
  17. For a third or subsequent conviction of any combination of serious traffic violations, in a separate incident within a three-year period while operating a noncommercial motor vehicle, a person required to have a learner’s permit or commercial driver’s license and a learner’s permit or commercial driver’s license holder must be disqualified from operating a commercial motor vehicle for a period of one hundred twenty days.
  18. Before suspending, revoking, or disqualifying a driver under this section, the director must provide the driver with notice of opportunity for hearing, in accordance with section 39-06-33, and the hearing requested must be held in accordance with section 39-06-33.
  19. After suspending, revoking, disqualifying, or canceling a commercial driver’s license, the director shall update the director’s records to reflect that action within ten days. After suspending, revoking, or canceling a nondomiciled commercial driver’s privileges, the director shall notify the licensing authority of the state that issued the commercial driver’s license or commercial learner’s permit within ten days.
  20. A foreign commercial driver is subject to disqualification under this section.

If any of the above violations occurred while transporting a hazardous material required to be placarded, the individual is disqualified for a period of not less than three years.

Source:

S.L. 1989, ch. 461, § 4; 1993, ch. 383, § 3; 2001, ch. 344, § 3; 2003, ch. 322, § 5; 2005, ch. 329, § 6; 2007, ch. 326, § 2; 2009, ch. 328, § 4; 2011, ch. 271, § 14; 2013, ch. 298, § 9; 2015, ch. 265, § 3, effective August 1, 2015; 2019, ch. 321, § 2, effective August 1, 2019; 2021, ch. 292, § 1, effective August 1, 2021.

Effective Date.

The 2015 amendment of this section by section 3 of chapter 265, S.L. 2015 became effective August 1, 2015.

Notes to Decisions

Application.

Supreme Court of North Dakota concluded that the commercial driver’s license suspension statute was properly interpreted as including past DUI offenses as long as the triggering offense occurred after the effective date of N.D.C.C. § 39-06.2-10(8). Lentz v. Spryncznatyk, 2006 ND 27, 708 N.W.2d 859, 2006 N.D. LEXIS 26 (N.D. 2006).

Authorized Administrative Tribunal.

Under N.D.C.C. § 39-06.2-10(8), the North Dakota Department of Transportation is an authorized administrative tribunal. Bienek v. DOT, 2007 ND 117, 736 N.W.2d 492, 2007 N.D. LEXIS 117 (N.D. 2007).

Calculation of the Three-year Time Period.

District court erred in affirming a North Dakota Department of Transportation (DOT) decision disqualifying a driver's commercial driving privileges for 60 days because the statute at issue only referred to convictions for the calculation of the three-year time period in which the DOT could disqualify commercial driving privileges for serious traffic violations, there was no reference to the commission of a violation as a triggering event for calculating this time period. Guthmiller v. Dir., 2018 ND 9, 906 N.W.2d 73, 2018 N.D. LEXIS 9 (N.D. 2018).

Conviction.

Definition of “conviction” in N.D.C.C. § 39-06.2-02(8) is a special provision applicable to commercial driver’s licenses that conflicts with the definition of “conviction” in N.D.C.C. § 39-06-30, a general provision applicable to motor vehicle operator’s licenses; under statutory construction principles, the definition of “conviction” found in N.D.C.C. § 39-06.2-02(8) prevails over the definition of “conviction” found in N.D.C.C. § 39-06-30. Therefore, the definition of “conviction” found in N.D.C.C. § 39-06.2-02(8) must be used when interpreting N.D.C.C. § 39-06.2-10(8). Bienek v. DOT, 2007 ND 117, 736 N.W.2d 492, 2007 N.D. LEXIS 117 (N.D. 2007).

N.D.C.C. § 39-06.2-10(7) was not void for vagueness due to differing definitions of “conviction” in N.D.C.C. §§ 39-06.2-02(8) and 39-06-30 (repealed) because it had been unambiguously held that a “conviction,” for suspension purposes, could arise from an administrative decision, and this judicial determination was considered when deciding if the public had notice of proscribed conduct. Hamre v. N.D. DOT, 2014 ND 23, 842 N.W.2d 865, 2014 N.D. LEXIS 29 (N.D. 2014).

Administrative suspension of a driver’s noncommercial driving privileges was a “conviction,” under N.D.C.C. § 39-06.2-10(7), for purposes of disqualifying the driver’s commercial driver’s license, because (1) N.D.C.C. § 39-06.2-02(8)’ s special provision defining “conviction” as administrative tribunal determinations had to be used when considering the driver’s first DUI conviction, and (2) the driver’s license’s administrative suspension was separate from criminal proceedings on the driver’s dismissed DUI charge. Hamre v. N.D. DOT, 2014 ND 23, 842 N.W.2d 865, 2014 N.D. LEXIS 29 (N.D. 2014).

Date of Triggering DUI Offense.

Department of transportation’s application of N.D.C.C. § 39-06.2-10(8) was not retroactive merely because defendant’s first DUI conviction in 2000 occurred before the effective date of subsection; it was his second DUI offense that occurred after the effective date of subsection in 2003 that triggered the 99 year suspension of his commercial driver’s license. Lentz v. Spryncznatyk, 2006 ND 27, 708 N.W.2d 859, 2006 N.D. LEXIS 26 (N.D. 2006).

Fact that one driving under the influence (DUI) conviction was entered before the enactment of the Federal Motor Carrier Safety Improvement Act did not matter since the second DUI conviction triggered a lifetime suspension. Bienek v. DOT, 2007 ND 117, 736 N.W.2d 492, 2007 N.D. LEXIS 117 (N.D. 2007).

Lifetime Suspension Proper.

Suspension of a driver’s license in 1990 was a conviction under N.D.C.C. § 39-06.2-10(8) and N.D.C.C. § 39-06.2-02(8) because a transportation department was an authorized administrative tribunal under N.D.C.C. § 39-06.2-10(8), and the definition of conviction under N.D.C.C. § 39-06.2-02(8) was used instead of the definition of conviction in N.D.C.C. § 39-06-30 since N.D.C.C. § 39-06.2-02(8) was the more specific statute; therefore, a lifetime suspension of a commercial license was proper for two driving under the influence convictions. Bienek v. DOT, 2007 ND 117, 736 N.W.2d 492, 2007 N.D. LEXIS 117 (N.D. 2007).

Law Reviews.

North Dakota Supreme Court Review (Lentz v. Spryncznatyk), 82 N.D. L. Rev. 1033 (2006).

39-06.2-10.1. Prohibited alcohol offenses for commercial motor vehicle drivers.

Any person who drives or is in actual physical control of a commercial motor vehicle within this state with an alcohol concentration of at least four one-hundredths of one percent by weight must, in addition to any other sanctions which may be imposed under this code, be disqualified from driving a commercial motor vehicle under section 39-06.2-10.

Source:

S.L. 1993, ch. 383, § 4.

Notes to Decisions

Evidence.

District court properly reversed suspension of plaintiff’s driving privileges, where department of transportation was unable to establish if intoxilyzer test was conducted within two hours of defendant driving a motor vehicle. Pavek v. Moore, 1997 ND 77, 562 N.W.2d 574, 1997 N.D. LEXIS 68 (N.D. 1997), modified, 1997 N.D. LEXIS 118 (N.D. May 13, 1997).

Time of Test.

A violation of this section is a per se violation, and the legislature intended for the chemical test to be performed within two hours of a person driving or being in actual physical control. Pavek v. Moore, 1997 ND 77, 562 N.W.2d 574, 1997 N.D. LEXIS 68 (N.D. 1997), modified, 1997 N.D. LEXIS 118 (N.D. May 13, 1997).

39-06.2-10.2. Implied consent requirements for commercial motor vehicle drivers.

  1. A person who drives or is in actual physical control of a commercial motor vehicle within this state is deemed to have given consent to take a test or tests of that person’s blood, breath, or urine for the purpose of determining that person’s alcohol concentration, or the presence of other drugs. The result of any test administered within two hours of driving or being in actual physical control of a commercial motor vehicle is that person’s alcohol concentration. The test must be conducted pursuant to the provisions of section 39-20-07.
  2. A test or tests may be administered at the direction of a law enforcement officer who, after stopping or detaining the commercial motor vehicle driver, has probable cause to believe that driver was driving a commercial motor vehicle while having alcohol or drugs in the driver’s system.
  3. A person requested to submit to a test as provided in subsection 1 or 5 must be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in that person being immediately placed out of service for a period of twenty-four hours and being disqualified from operating a commercial motor vehicle for a period of not less than one year under section 39-06.2-10.
  4. If the person refuses testing, or submits to a test that discloses an alcohol concentration of at least four one-hundredths of one percent by weight, the law enforcement officer must submit a certified report to the director certifying that the test was requested pursuant to subsection 1 or 5 and that the person refused to submit to testing, or submitted to a test under subsection 1 which disclosed an alcohol concentration of at least four one-hundredths of one percent by weight.
  5. A person who drives or is in actual physical control of a commercial motor vehicle within this state is deemed to have given consent to an onsite alcohol screening test under section 39-20-14.
  6. Upon receipt of the certified report of a law enforcement officer submitted under subsection 4, the director must disqualify the driver from driving a commercial motor vehicle under section 39-06.2-10.

Source:

S.L. 1993, ch. 383, § 5.

Notes to Decisions

Time of Test.

A violation of N.D.C.C. § 39-06.2-10.1 is a per se violation, and the legislature intended for the chemical test to be performed within two hours of a person driving or being in actual physical control. Pavek v. Moore, 1997 ND 77, 562 N.W.2d 574, 1997 N.D. LEXIS 68 (N.D. 1997), modified, 1997 N.D. LEXIS 118 (N.D. May 13, 1997).

39-06.2-10.3. Action following test result for a resident driver.

If a person submits to a test under section 39-06.2-10.2 and the test shows that person to have an alcohol concentration of at least four one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving or being in actual physical control of a commercial motor vehicle, the following procedures apply:

  1. When a breath sample test result derived under section 39-20-07 reveals a resident driver to have an alcohol concentration of at least four one-hundredths of one percent by weight, the law enforcement officer shall immediately issue the driver an out-of-service order as provided for in section 39-06.2-10.9. If the driver then has valid driving privileges, the law enforcement officer must issue to the driver a temporary driver’s permit, in accordance with section 39-06.2-10.8.
  2. If a test administered under section 39-06.2-10.2 was by a urine or blood sample and the person tested is not a resident of an area in which the law enforcement officer has jurisdiction, the law enforcement officer shall, on receiving the analysis of the sample by the director of the state crime laboratory or the director’s designee showing that person had an alcohol concentration of at least four one-hundredths of one percent by weight, either proceed in accordance with subsection 1 during that person’s reappearance within the officer’s jurisdiction or notify a law enforcement agency having jurisdiction where the person lives. On that notification, that law enforcement agency shall immediately issue to that person a temporary driver’s permit according to section 39-06.2-10.8.
  3. The halting officer, within five days of the issuance of the temporary driver’s permit, shall forward to the director a certified written report in the form required by the director and the person’s commercial driver’s license taken under subsection 1 or 2. If the person was issued a temporary driver’s permit because of the results of a test, the report must show that the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a commercial motor vehicle while in violation of section 39-06.2-10.1, that the person was lawfully detained, that the person was tested for alcohol concentration under this chapter, and that the results of the test show that the person had an alcohol concentration of at least four one-hundredths of one percent by weight. In addition to the commercial driver’s license and report, the law enforcement officer must forward to the director a certified copy of the operational checklist and test records of a breath test and a copy of the certified copy of the analytical report for a blood or urine test for all tests administered at the direction of the officer.

Source:

S.L. 1993, ch. 383, § 6; 2005, ch. 195, § 14; 2011, ch. 271, § 15.

39-06.2-10.4. Action following test result or refusal of testing by nonresident driver.

If a driver licensed in another state refuses, in this state, a test provided under section 39-06.2-10.2 or submits to a test under section 39-06.2-10.2, and the test results show an alcohol concentration of at least four one-hundredths of one percent by weight, the following procedures apply:

  1. When a breath sample test result, derived under section 39-20-07, reveals the driver to have alcohol concentration of at least four one-hundredths of one percent by weight, the halting officer, without taking possession of the person’s out-of-state driver’s license, shall inform the driver of the test results and issue an out-of-service order according to section 39-06.2-10.9 and a temporary driver’s permit according to section 39-06.2-10.8.
  2. When a urine or blood sample test result, derived under section 39-20-07, reveals an alcohol concentration of at least four one-hundredths of one percent by weight, the halting officer shall mail the person a temporary driver’s permit issued according to section 39-06.2-10.8 and a notice as provided under section 39-06.1-07.
  3. The law enforcement officer, within five days of issuing the temporary driver’s permit, shall forward to the director a certified written report in the form required by the director and a certified copy of the operational checklist and test records of a breath test and a copy of the certified copy of the analytical report for a blood or urine test for all tests administered at the direction of the officer. If the person was issued a temporary driver’s permit because of the person’s refusal to submit to a test under sections 39-06.2-10.2 and 39-20-14, the report must include information as provided in section 39-06.2-10.3. If the person was issued a temporary driver’s permit because of the results of a test, the report must show that the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a commercial motor vehicle while in violation of section 39-06.2-10.1, that the person was lawfully detained, that the person was tested for alcohol concentration under this chapter, and that the results of the test show that the person had an alcohol concentration of at least four one-hundredths of one percent by weight.

Source:

S.L. 1993, ch. 383, § 7.

Collateral References.

Mental incapacity as justifying refusal to submit to tests for driving while intoxicated, 76 A.L.R.5th 597.

39-06.2-10.5. Revocation of privilege to drive commercial motor vehicle upon refusal to submit to testing.

If a person refuses to submit to testing under section 39-06.2-10.2, the law enforcement officer shall immediately take possession of the person’s driver’s license and issue to that person a temporary driver’s permit. The director, upon the receipt of that person’s driver’s license and a certified written report of the law enforcement officer in the form required by the director, forwarded by the officer within five days after issuing the temporary driver’s permit, showing that the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a commercial motor vehicle while in violation of section 39-06.2-10.1 or, had reason to believe that the person committed a moving traffic violation or was involved in a traffic accident as a driver, and in conjunction with the violation or accident the officer has, through the officer’s observations, formulated an opinion that the person’s body contains alcohol, that the person was lawfully detained, and that the person had refused to submit to the screening test under section 39-06.2-10.2, shall revoke that person’s commercial driver’s license or permit to drive and any nondomiciled commercial driver’s privilege for the appropriate period under section 39-06.2-10, or if the person is a resident without a commercial driver’s license or permit, the director shall deny to the person the issuance of a commercial driver’s license or permit for the appropriate period under section 39-06.2-10 after the date of the alleged violation, subject to the opportunity for a prerevocation hearing and postrevocation review as provided in this chapter. In the revocation of the person’s driver’s license the director shall give credit for time in which the person was without a driver’s license after the day of the person’s refusal to submit to the test except that the director may not give credit for time in which the person retained driving privileges through a temporary driver’s permit.

Source:

S.L. 1993, ch. 383, § 8; 2013, ch. 298, § 10.

Collateral References.

Mental incapacity as justifying refusal to submit to tests for driving while intoxicated, 76 A.L.R.5th 597.

39-06.2-10.6. Administrative hearing on request.

  1. Before issuing an order of suspension, revocation, or disqualification under section 39-06.2-10, the director shall afford that person an opportunity for a hearing as provided by section 39-20-05, if the person mails a request for the hearing to the director within ten days after the date of issuance of the temporary driver’s permit.
  2. If the issue to be determined by the hearing concerns license suspension for operating a commercial motor vehicle while having an alcohol concentration of at least four one-hundredths of one percent by weight, the hearing must be before a hearing officer assigned by the director and at a time and place designated by the director. The hearing must be recorded and its scope may cover only the issues of whether the arresting officer had reasonable grounds to believe the person had been driving or was in actual physical control of a commercial motor vehicle in violation of section 39-06.2-10.1, whether the person was lawfully detained, whether the person was tested in accordance with section 39-06.2-10.2, and whether the test results show the person had an alcohol concentration of at least four one-hundredths of one percent by weight. For purposes of this section, a copy of a certified copy of an analytical report of a blood or urine sample from the office of the director of the state crime laboratory or the director’s designee, or a certified copy of the checklist and test records from a certified breath test operator establish prima facie the alcohol concentration shown therein. Whether the person was warned that the privilege to drive might be suspended based on the results of the test is not an issue.
  3. If the issue to be determined by the hearing concerns license revocation for refusing to submit to a test under section 39-06.2-10.2, the hearing must be before a hearing officer assigned by the director at a time and place designated by the director. The hearing must be recorded. The scope of a hearing for refusing to submit to a test under section 39-06.2-10.2 may cover only the issues of whether a law enforcement officer had reasonable grounds to believe the person had been driving or was in actual physical control of a commercial motor vehicle in violation of section 39-06.2-10.1, whether the person was lawfully detained, and whether that person refused to submit to the test or tests. The scope of a hearing for refusing to submit to a test under subsection 3 of section 39-06.2-10.4 may cover only the issues of whether the law enforcement officer had reason to believe the person committed a moving traffic violation or was involved in a traffic accident as a driver, whether in conjunction with the violation or the accident the officer has, through the officer’s observations, formulated an opinion that the person’s body contains alcohol and, whether the person refused to submit to the onsite screening test. Whether the person was warned that the privilege to drive would be revoked or denied for refusal to submit to the test or tests is not an issue.
  4. At a hearing under this section, the regularly kept records of the director and the state crime laboratory may be introduced. Those records establish prima facie their contents without further foundation. For purposes of this chapter, the following are deemed regularly kept records of the director and the state crime laboratory:
    1. Any copy of a certified copy of an analytical report of a blood or urine sample received by the director from the director of the state crime laboratory or the director’s designee or a law enforcement officer, a certified copy of the checklist and test records received by the director from a certified breath test operator; and
    2. Any copy of a certified copy of a certificate of the director of the state crime laboratory or the director’s designee relating to approved methods, devices, operators, materials, and checklists used for testing for alcohol concentration received by the director from the director of the state crime laboratory or the director’s designee, that have been electronically posted with the state crime laboratory division of the attorney general at the attorney general website.
  5. At the close of the hearing, the hearing officer shall notify the person of the hearing officer’s findings of fact, conclusions of law, and decision based on the findings and conclusions and shall immediately deliver to the person a copy of the decision. If the hearing officer does not find in favor of the person, the copy of the decision serves as the director’s official notification to the person of the revocation, suspension, or denial of driving privileges in this state. If the hearing officer finds, based on a preponderance of the evidence, that the person refused a test under section 39-06.2-10.2 or that the person had an alcohol concentration of at least four one-hundredths of one percent by weight, the hearing officer shall immediately take possession of the person’s temporary driver’s permit issued under this chapter. If the hearing officer does not find against the person, the hearing officer shall sign, date, and mark on the person’s permit an extension of driving privileges for the next twenty days and shall return the permit to the person. The hearing officer shall report the findings, conclusions, and decisions to the director within ten days of the conclusion of the hearing. If the hearing officer has determined in favor of the person, the director shall return the person’s commercial driver’s license by regular mail to the address on file with the director under section 39-06.2-08.
  6. If the person who requested a hearing under this section fails to appear at the hearing without justification, the right to the hearing is waived, and the hearing officer’s determination on license revocation, suspension, or denial will be based on the written request for hearing, law enforcement officer’s report, and other evidence as may be available. On the date for which the hearing is scheduled, the hearing officer shall mail to the person, by regular mail, at the address on file with the director under section 39-06-20, or at any other address for the person or the person’s legal representative supplied in the request for hearing, a copy of the decision which serves as the director’s official notification to the person of the revocation, suspension, or denial of driving privileges in this state. Even if the person for whom the hearing is scheduled fails to appear at the hearing, the hearing is deemed to have been held on the date for which it is scheduled for purposes of appeal under section 39-06.2-10.7.
  7. A hearing under this section may be conducted in whole or in part by telephone, television, virtual online interface, or other electronic means with the consent of the licensee. A hearing officer may provide a notice, decision, or order under this section by mail or other means as authorized by the director.

Source:

S.L. 1993, ch. 383, § 9; 1999, ch. 278, § 61; 2001, ch. 120, § 1; 2005, ch. 195, § 15; 2011, ch. 288, § 12; 2021, ch. 290, § 2, effective August 1, 2021.

39-06.2-10.7. Judicial review.

Any person whose commercial driver’s license or privilege has been suspended, revoked, or denied by the decision of the hearing officer under section 39-06.2-10.6 may appeal within seven days after the date of the hearing under section 39-06.2-10.6 as shown by the date of the hearing officer’s decision, section 28-32-42 notwithstanding, by serving on the director and filing a notice of appeal and specifications of error in the district court in the county where the events occurred for which the demand for a test was made, or in the county in which the administrative hearing was held. The court shall set the matter for hearing, and the petitioner shall give twenty days’ notice of the hearing to the director and to the hearing officer who rendered the decision. Neither the director nor the court may stay the decision pending decision on appeal. Within twenty days after receipt of the notice of appeal, the director or the hearing officer who rendered the decision shall file in the office of the clerk of court to which the appeal is taken a certified transcript of the testimony and all other proceedings. It is the record on which the appeal must be determined. No additional evidence may be heard. The court shall affirm the decision of the director or hearing officer unless it finds the evidence insufficient to warrant the conclusion reached by the director or hearing officer. The court may direct that the matter be returned to the director or hearing officer for rehearing and the presentation of additional evidence.

Source:

S.L. 1993, ch. 383, § 10; 2001, ch. 293, § 17.

39-06.2-10.8. Temporary driver’s permit.

A temporary driver’s permit extends driving privileges for twenty-five days, unless earlier terminated by the decision of a hearing officer under section 39-06.2-10.6. The law enforcement officer must sign and note the date of issuance on the temporary driver’s permit. The temporary driver’s permit serves as the director’s official notification to the driver of the director’s intent to revoke, suspend, or deny driving privileges in this state. No temporary driver’s permit may be issued for the period covered by an out-of-service order.

Source:

S.L. 1993, ch. 383, § 11.

39-06.2-10.9. Out-of-service order — Rules.

The director shall adopt rules for the issuance and enforcement of out-of-service orders. The rules must be in accordance with the standards and requirements of the federal Commercial Motor Vehicle Safety Act of 1986 [Pub. L. 99-570; 100 Stat. 3207-179; 49 App. U.S.C. 2708] and 49 CFR parts 383 and 392.

Source:

S.L. 1993, ch. 383, § 12.

39-06.2-11. License reissuance — Class D license.

The director may issue a class D driver’s license to a driver suspended, revoked, or disqualified under this chapter when:

  1. The suspension, revocation, or disqualification arises from a violation under this chapter which would not require similar sanctions under chapter 39-06, 39-06.1, or 39-20.
  2. The period of suspension, revocation, or disqualification imposed for a violation under this chapter is greater than that which could have been imposed under chapter 39-06, 39-06.1, or 39-20 for the same violation, and the period of suspension or revocation provided for under chapter 39-06, 39-06.1, or 39-20 has been satisfied under the existing suspension or revocation.

Source:

S.L. 1989, ch. 461, § 4; 1993, ch. 383, § 13.

39-06.2-12. Notification of traffic convictions.

Within ten days after receiving a report of the conviction of any nondomiciled holder of a commercial driver’s license for any violation of state or local ordinance relating to motor vehicle traffic control, other than parking violations, committed in a commercial motor vehicle, the director shall notify the driver’s licensing authority in the licensing state of the conviction.

Source:

S.L. 1989, ch. 461, § 4; 2013, ch. 298, § 11.

39-06.2-13. Driving record information to be furnished. [Repealed]

Repealed by S.L. 1991, ch. 421, § 1.

39-06.2-13.1. Driving record information to be provided.

Notwithstanding any other provision of law and upon payment of a fee listed in section 39-06.2-19, the director shall provide full information regarding the driving record of an individual who has been issued a commercial driver’s license to an employer or to a prospective employer if the individual has given written consent to the prospective employer for this information.

Source:

S.L. 2003, ch. 322, § 1; 2013, ch. 300, § 5.

39-06.2-14. Rulemaking authority.

The director may, pursuant to chapter 28-32, adopt any rules necessary to carry out the provisions of this chapter.

Source:

S.L. 1989, ch. 461, § 4.

39-06.2-15. Authority to enter agreements.

The director may enter into or make agreements, arrangements, or declarations to carry out the provisions of this chapter.

Source:

S.L. 1989, ch. 461, § 4.

39-06.2-16. Reciprocity.

  1. Notwithstanding any other provision of law, an individual may drive a commercial motor vehicle in this state if the individual has a valid commercial driver’s license or commercial learner’s permit issued by any state, province or territory of Canada, or licencia federal de conductor issued by Mexico in accordance with the minimum federal standards for the issuance of a commercial motor vehicle driver’s license, if the individual’s license or permit is not suspended, revoked, or canceled, and if the individual is not disqualified from driving a commercial motor vehicle.
  2. The director must give all out-of-state convictions full faith and credit if the driver is licensed by this state at the time of the conviction or becomes licensed by this state at a later time and treat them for sanctioning purposes under this chapter as if they occurred in this state. For purposes of this section, originals, photostatic copies, or electronic transmissions of the records of the driver’s licensing or other authority of the other jurisdiction are sufficient evidence whether or not they are certified copies.

Source:

S.L. 1989, ch. 461, § 4; 2003, ch. 312, § 6; 2007, ch. 326, § 3; 2013, ch. 298, § 12.

39-06.2-17. Hours of service exemption — Transportation of agricultural commodities. [Repealed]

Source:

S.L. 1997, ch. 339, § 1; 1999, ch. 345, § 1; repealed by 2021, ch. 280, § 7, effective August 1, 2021.

39-06.2-18. Imminent hazard disqualification — Records.

A disqualification imposed in accordance with the provisions of 49 CFR part 383.52 relating to notification from the federal motor carrier safety administration that the driver is disqualified from driving a commercial motor vehicle and is determined to constitute an imminent hazard becomes a part of the driver’s record maintained by the director.

Source:

S.L. 2003, ch. 322, § 2.

39-06.2-19. Fees — Deposit in highway fund.

  1. All money received under this chapter must be paid monthly to the highway fund in the state treasury.
  2. The fee for:
    1. A commercial driver’s license test is five dollars.
    2. An application for a commercial driver’s license or permit is fifteen dollars.
    3. Each endorsement is three dollars.
    4. A nonresident commercial driver’s license is twenty dollars.
    5. The driving record for an employer or prospective employer is three dollars.

Source:

S.L. 2013, ch. 300, § 6.

CHAPTER 39-07 General Regulations Governing Traffic

39-07-01. Bicycle or ridden animal to be deemed vehicle.

For the purposes of chapters 39-08 through 39-13, a bicycle or a ridden animal must be deemed a vehicle.

Source:

S.L. 1927, ch. 162, § 1, subs. a; R.C. 1943, § 39-0701.

Notes to Decisions

Construction.

Legislature’s deeming a bicycle a “vehicle” under N.D.C.C. § 39-07-01 includes a “vehicle” under N.D.C.C. § 39-08-01. City of Lincoln v. Johnston, 2012 ND 139, 818 N.W.2d 778, 2012 N.D. LEXIS 140 (N.D. 2012).

Collateral References.

Vehicle drawn by horses as within meaning of insurance policy provision defining risks covered or excepted, 65 A.L.R.3d 824.

39-07-02. Owner of property used for vehicular travel may prohibit or require additional conditions to use.

The provisions of chapters 39-08 through 39-13, and chapter 39-21, may not be construed to prevent the owner of real property used by the public for purposes of vehicular travel, by the permission of such owner and not as a matter of right, from prohibiting such use nor from requiring different or additional conditions other than those specified in such chapters or otherwise regulating such use as may seem best to such owner.

Source:

S.L. 1927, ch. 162, § 34; R.C. 1943, § 39-0702; S.L. 1963, ch. 283, § 3.

39-07-03. Through highways designated by director and local authorities — Stop and yield intersections.

The director with reference to state highways, and local authorities, with reference to highways under their jurisdiction, may, by proclamation, designate as through highways, any highway, street, or part thereof, and erect stop signs or yield signs at specified entrances thereto, or may designate any intersection as a stop intersection or as a yield intersection and erect stop signs or yield signs at one or more entrances to such intersection.

Source:

S.L. 1927, ch. 162, § 21; R.C. 1943, § 39-0703; S.L. 1961, ch. 202, § 2; 1963, ch. 283, § 4.

Notes to Decisions

Duty to Stop.

The duty to stop exists whether or not anyone is at or near the crossing or is in sight. Marsden v. O'Callaghan, 77 N.W.2d 522, 1956 N.D. LEXIS 128 (N.D. 1956).

A driver upon a through highway is entitled to assume that those approaching it will obey the law and stop. Henke v. Peyerl, 89 N.W.2d 1, 1958 N.D. LEXIS 70 (N.D. 1958).

After stopping, it is the driver’s duty to yield not only to vehicles within the intersection, but also to approaching vehicles in such proximity thereto as to constitute an apparent and immediate hazard. Henke v. Peyerl, 89 N.W.2d 1, 1958 N.D. LEXIS 70 (N.D. 1958).

Effect of Signage.

The evidence presented through videotape, pictures, and deposition testimony about signing, visibility, and road conditions, showed that the county did not create a pitfall, trap, or snare for a prudent driver at the accident intersection by erecting certain road signs and failing to erect others. Boudreau v. Estate of Miller, 2000 ND 30, 606 N.W.2d 514, 2000 N.D. LEXIS 21 (N.D. 2000).

Purpose of “Full Stop” Requirement.

Purpose of requirement that driver come to a full stop is to enable driver to determine, first, the state of the traffic passing on highway, and second, whether he can safely enter and cross highway in view of the existing traffic. Marsden v. O'Callaghan, 77 N.W.2d 522, 1956 N.D. LEXIS 128 (N.D. 1956).

Removal of Sign.

Once established as a through highway, a highway continues to be a through highway at an intersection, even where the properly erected stop sign has been accidentally or negligently removed. Austinson v. Kilpatrick, 105 N.W.2d 258, 1960 N.D. LEXIS 85 (N.D. 1960).

Sign Required at Each Intersection.

Highways are through highways only at those intersections at which stop signs have been properly erected and evidence that a highway has been designated a through highway at one intersection is not proof that it has been so designated at any other intersection. Austinson v. Kilpatrick, 105 N.W.2d 258, 1960 N.D. LEXIS 85 (N.D. 1960).

Collateral References.

Stop-and-go signal: liability for collision at intersection of ordinary and arterial highways as affected by absence, displacement, or malfunctioning of stop sign or other traffic signal, 74 A.L.R.2d 242.

Yield sign or signal, liability for accident at intersection as affected by reliance upon or disregard of, 2 A.L.R.3d 275.

39-07-03.1. Uniform traffic lights prescribed by commissioner — Prohibition. [Repealed]

Repealed by S.L. 1953, ch. 177, § 120.

39-07-04. Powers of local authorities. [Repealed]

Repealed by S.L. 1975, ch. 349, § 41.

39-07-05. Persons working on highways — Exceptions.

Unless specifically made applicable, the provisions of chapters 39-08, 39-09, 39-10, and 39-12, except sections 39-08-01, 39-08-03, and 39-08-19, do not apply to persons, motor vehicles, and other equipment while actually engaged in work upon a highway, but do apply to such persons and vehicles when traveling to or from such work.

Source:

S.L. 1927, ch. 162, § 32; R.C. 1943, § 39-0705; S.L. 1963, ch. 283, § 6; 1965, ch. 266, § 2; 1975, ch. 349, § 4.

Notes to Decisions

Application of Exception.

Where a truck owner, employed by a county to remove snow from highways, was using his truck to take fuel for his snow-removing equipment to a farm where the machinery was being used to open up drifts for a farmer, he was not then engaged in work on the highway and was not exempt from speed limitations. Stephenson v. Steinhauer, 188 F.2d 432, 1951 U.S. App. LEXIS 3047 (8th Cir. N.D. 1951).

Driving on Left Side of Highway.

Exemption provided by this section encompasses N.D.C.C. § 39-10-14 relating to driving on left side of highway; where road maintainer was being operated on left-hand side of well-traveled highway, while proceeding up steep grade, with obstructed view, and without any warning devices except small red flag mounted on the cab, whether such operation was safe and prudent was question for jury in action for personal injury sustained in collision between automobile and the maintainer; in order to be exempt from provisions establishing rules of road, county had burden of proving that it was actually engaged in work on highway, that such work was necessary and that it was carried out in safe manner. Linington v. McLean County, 161 N.W.2d 487, 1968 N.D. LEXIS 81 (N.D. 1968).

Snowplow.

The requirement of N.D.C.C. § 39-10-08 that all vehicles operating on the public highways in North Dakota shall be driven on the right half of such highways does not apply to a snowplow while being used to remove snow from highway. Spielman v. Weber, 118 N.W.2d 727, 1962 N.D. LEXIS 107 (N.D. 1962).

Workmen in the Street.

While a workman in the street cannot utterly disregard the matter of his own safety from passing vehicles, his duty of care and vigilance is not the same as that of an ordinary pedestrian; his failure to keep a constant lookout for approaching vehicles does not necessarily constitute negligence. Quam v. Wengert, 86 N.W.2d 741, 1957 N.D. LEXIS 176 (N.D. 1957).

39-07-06. General penalty for violation of title.

Any person violating any of the provisions of this title for which another criminal penalty is not provided specifically is guilty of an infraction. As used in this section, the phrase “another criminal penalty” includes provision for payment of a fixed fee for violating another section in this title but does not include any other administrative sanction which may be imposed.

Source:

S.L. 1927, ch. 162, § 61; R.C. 1943, § 39-0706; S.L. 1975, ch. 106, § 433.

Cross-References.

Negligent homicide, class C felony, see § 12.1-16-03.

Penalty for violation of chapter, misdemeanor, see § 39-01-07.

39-07-07. Halting an individual for violating traffic regulations — Duty of officer halting.

  1. Whenever an individual is halted for the violation of any of the provisions of chapters 39-01 through 39-13, 39-18, 39-21, and 39-24, or of equivalent city ordinances, the officer halting the individual, except as otherwise provided in section 39-07-09 and section 39-20-03.1 or 39-20-03.2, may:
    1. Take the name and address of the individual;
    2. Take the license number of the individual’s motor vehicle; and
    3. If a city ordinance or state criminal traffic violation, issue a summons or otherwise notify the individual in writing to appear at a time and place to be specified in the summons or notice or, if a state noncriminal traffic violation, notify the individual of the right to request a hearing when posting bond by mail.
  2. A halting officer employed by a political subdivision of the state may not take an individual into custody or require the individual to proceed with the officer to any other location for the purpose of posting bond, if the traffic violation was a noncriminal offense under section 39-06.1-02. The officer shall offer to provide the individual with an envelope for use in mailing the bond.

Source:

S.L. 1927, ch. 162, § 65, subs. a; R.C. 1943, § 39-0707; S.L. 1963, ch. 283, § 7; 1967, ch. 307, § 1; 1975, ch. 339, § 16; 1981, ch. 388, § 2; 1983, ch. 415, § 18; 1995, ch. 318, § 4; 2021, ch. 291, § 3, effective August 1, 2021.

Cross-References.

Traffic violations noncriminal, see § 39-06.1-02.

Notes to Decisions

Application.

This section does not apply to a person stopped and charged with a criminal traffic violation set forth under N.D.C.C. § 39-06.1-05. State v. Moen, 441 N.W.2d 643, 1989 N.D. LEXIS 113 (N.D. 1989).

In accordance with N.D.C.C. § 39-07-09, this section does not apply to the criminal traffic violation of driving under the influence of intoxicating liquor. State v. Moen, 441 N.W.2d 643, 1989 N.D. LEXIS 113 (N.D. 1989).

Detaining Traffic Offender at Scene of Violation.

A police officer may temporarily detain a traffic offender at scene of a violation and during such temporary detention traffic offender is subject to arresting officer’s authority and restraint until officer completes issuance of traffic citation and expressly releases offender; a reasonable period of detention includes amount of time necessary for officer to complete his duties resulting from stop. State v. Mertz, 362 N.W.2d 410, 1985 N.D. LEXIS 255 (N.D. 1985).

Requiring Traffic Offender to Get Inside Police Car.

Requiring driver of a vehicle legitimately stopped by a police officer for a speeding violation to get inside police car during issuance of a speeding citation does not violate driver’s Fourth Amendment rights against unreasonable searches and seizures. State v. Mertz, 362 N.W.2d 410, 1985 N.D. LEXIS 255 (N.D. 1985).

Law Reviews.

Viewpoint: Atwater in North Dakota: Soccer Moms Beware, Sometimes, 78 N.D. L. Rev. 467 (2002).

Article: Constitutional Roadkill in the Courts: Looking To the Legislature To Protect North Dakota Motorists Against Almost Unlimited Police Power To Stop and Investigate Crime, see 86 N.D. L. Rev. 1 (2010).

39-07-07.1. Provision of envelopes for traffic and parking violations on state charitable or penal institution property or state capitol grounds. [Repealed]

Source:

S.L. 1981, ch. 379, § 2; 1989, ch. 69, § 45; 1989, ch. 319, § 5; repealed by 2021, ch. 291, § 4, effective August 1, 2021.

39-07-08. Hearing — Time — Promise of defendant to appear — Failure to appear — Penalty.

The time to be specified in the summons or notice provided for in section 39-07-07 must be within thirty-five days after the issuance of the summons or notice or earlier if so ordered by the magistrate of the city or county having jurisdiction over the offense or if the person halted demands an earlier hearing. If the person halted desires, the person may have the right, at a convenient hour, to an immediate hearing or to a hearing within twenty-four hours. The hearing must be before a magistrate of the city or county in which the offense was committed. If an immediate hearing is demanded, a district judge serving the county, with the consent of the respective prosecuting attorneys, may order the hearing to be held in any of the counties in which the district judge has jurisdiction, rather than in the county where the offense was allegedly committed. Upon the receipt from the person halted of a written promise to appear at the time and place mentioned in the summons or notice, the officer shall release the person from custody. Any person refusing to give a written promise to appear must be taken immediately by the halting officer before the nearest or most accessible magistrate, or to such other place or before such other person as may be provided by a statute or ordinance authorizing the giving of bail. Any person willfully violating the person’s written promise to appear is guilty of a class B misdemeanor, regardless of the disposition of the charge upon which the person originally was halted. The time limitations for a hearing as provided by this section do not preclude a recharging of the alleged violation if the person being charged receives a new summons or notice subject to the provisions of this section.

Source:

S.L. 1927, ch. 162, § 65, subs. a; R.C. 1943, § 39-0708; S.L. 1967, ch. 307, § 2; 1975, ch. 339, § 17; 1987, ch. 460, § 4; 1991, ch. 422, § 1; 1995, ch. 318, § 5.

Cross-References.

Traffic violations noncriminal, see § 39-06.1-02.

Uniform traffic complaint and summons, see § 29-05-31.

Notes to Decisions

Application.

The legislature did not intend that this section apply to the criminal traffic violations listed in N.D.C.C. § 39-06.1-05, which includes driving under the influence of intoxicating liquor. State v. Moen, 441 N.W.2d 643, 1989 N.D. LEXIS 113 (N.D. 1989).

Failure to Appear.

Since the validity of a traffic citation is not an element of a failure-to-appear charge, defendant who failed to appear on a traffic citation can be convicted of violating his written promise to appear regardless of the disposition of the underlying traffic citations. State v. Stuart, 544 N.W.2d 158, 1996 N.D. LEXIS 50 (N.D. 1996).

Law Reviews.

Courts of Limited Jurisdiction in North Dakota, 31 N.D. L. Rev. 6, 17 (1955).

39-07-09. Offenses under which person halted may not be entitled to release upon promise to appear.

Section 39-07-07 does not apply to a person if:

  1. The halting officer has good reason to believe the person guilty of any felony or if the person is halted and charged with an offense listed in section 39-06.1-05 but not listed in subsection 2; or
  2. The halting officer, acting within the officer’s discretion, determines that it is inadvisable to release the person upon a promise to appear and if the person has been halted and charged with any of the following offenses:
    1. Reckless driving.
    2. Driving in excess of speed limitations established by the state or by local authorities in their respective jurisdictions.
    3. Driving while license or driving privilege is suspended or revoked for violation of section 39-06-42, or an equivalent ordinance.
    4. Driving without liability insurance in violation of section 39-08-20.
    5. Failing to display a placard or flag, in violation of any rule implementing section 39-21-44, while transporting explosive or hazardous materials.
    6. Operating an unsafe vehicle in violation of subsection 2 of section 39-21-46.

The halting officer forthwith shall take any person not released upon a promise to appear before the nearest or most accessible magistrate.

Source:

S.L. 1927, ch. 162, § 65, subs. b; R.C. 1943, § 39-0709; S.L. 1953, ch. 246, § 1; 1957 Supp., § 39-0709; S.L. 1967, ch. 307, § 3; 1973, ch. 301, § 22; 1987, ch. 470, § 1; 1989, ch. 463, § 5; 2001, ch. 341, § 6; 2003, ch. 317, § 4; 2015, ch. 264, § 5, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 5 of chapter 264, S.L. 2015 became effective August 1, 2015.

Notes to Decisions

Application of Section 39-07-07.

In accordance with this section, N.D.C.C. § 39-07-07 does not apply to the criminal traffic violation of driving under the influence of intoxicating liquor. State v. Moen, 441 N.W.2d 643, 1989 N.D. LEXIS 113 (N.D. 1989).

Law Reviews.

Viewpoint: Atwater in North Dakota: Soccer Moms Beware, Sometimes, 78 N.D. L. Rev. 467 (2002).

39-07-10. Officer violating provisions for arrest and notice of hearing to defendant may be removed from office.

Any officer violating section 39-07-07, 39-07-08, 39-07-09, 39-20-03.1, or 39-20-03.2 is guilty of misconduct in office and is subject to removal from office.

Source:

S.L. 1927, ch. 162, § 65, subs. c; R.C. 1943, § 39-0710; S.L. 1983, ch. 415, § 19.

Law Reviews.

Article: Constitutional Roadkill in the Courts: Looking To the Legislature To Protect North Dakota Motorists Against Almost Unlimited Police Power To Stop and Investigate Crime, see 86 N.D. L. Rev. 1 (2010).

39-07-11. Magistrate to keep record of convictions of traffic violations — Records of conviction to be forwarded to licensing authority.

Every magistrate, as defined in section 29-01-14, shall keep a full record of every case brought before the magistrate in which a person is charged with a violation of chapter 12.1-16 resulting from the operation of a motor vehicle, or of any provision of chapters 39-05 through 39-13, 39-21, and 39-24, or with a violation of a municipal ordinance which is equivalent to any of the provisions of the foregoing statutes. Within ten days after a final order or judgment of conviction, for a violation not subject to disposition and reporting under chapter 39-06.1, by the North Dakota supreme court or any lower court having jurisdiction, provided that no appeal is pending and the time for filing a notice of appeal has elapsed, the magistrate then having jurisdiction shall forward a report of that fact to the licensing authority. If the reported violation caused another person’s serious bodily injury, as defined in section 12.1-01-04, the magistrate shall include that information in the report. Any conviction for which a report is received by the licensing authority may be deemed by the licensing authority to be final, and the licensing authority may take any action authorized by law to be taken based on the report. Subject to the filing of an appeal, a conviction includes those instances when:

  1. A sentence is imposed and suspended;
  2. Imposition of a sentence is deferred under subsection 4 of section 12.1-32-02; or
  3. There is a forfeiture of bail or collateral deposited to secure a defendant’s appearance in court and the forfeiture has not been vacated.

Source:

S.L. 1927, ch. 162, § 66; R.C. 1943, § 39-0711; S.L. 1963, ch. 283, § 8; 1973, ch. 301, § 23; 1979, ch. 187, § 79; 1981, ch. 386, § 2; 1983, ch. 415, § 20; 1987, ch. 460, § 5; 1989, ch. 158, § 13.

39-07-12. Garages to report.

The person in charge of any garage or repair shop to which is brought any motor vehicle which shows evidence of having been involved in a reportable accident as provided in section 39-08-09 or of being struck by any bullet shall report or cause a report to be made to a police officer within twenty-four hours after such motor vehicle is received, and before any repairs are made to such vehicle, giving the registration number, and the name and address of the owner, operator, or person in control of such vehicle with a description of the location and type of damage to the vehicle, or any missing parts, if the vehicle does not have a sticker on a window thereof issued by a police officer, sheriff, or highway patrolman, bearing information to show that the accident in which the vehicle was involved has been investigated. The police officer investigating any reportable accident shall attach a sticker to the window of any damaged vehicle showing that the accident in which such vehicle was involved has been investigated. If the vehicle does bear such a sticker, the garage or repair shop need not make the report this section requires and may begin repairs immediately. After repairs have been made and before the vehicle is released, the sticker provided herein must be removed.

Source:

S.L. 1955, ch. 253, § 11; R.C. 1943, 1957 Supp., § 39-0712; S.L. 1959, ch. 294, § 1.

39-07-13. Wrecker and towing services to report.

The person in charge or the operator of any commercial towing or wrecker service which causes any motor vehicle to be transported to a private residence or business other than a garage or repair shop which shows evidence of having been involved in a reportable accident as provided in section 39-08-09 or of being struck by any bullet shall report or cause a report to be made to a police officer within twenty-four hours after such motor vehicle is transported. The report must give the registration number, and the name and address of the owner, operator, or person in control of such vehicle with a description of the location and type of damage to the vehicle, or any missing parts, along with the location such vehicle was transported to, if the vehicle does not have a sticker on a window thereof issued by a police officer, sheriff, or highway patrolman, bearing information to show that the accident in which the vehicle was involved has been investigated. If the vehicle does bear such a sticker, the towing or wrecker service need not make the report this section requires.

Source:

S.L. 1983, ch. 433, § 1.

CHAPTER 39-08 Regulations Governing Operators

39-08-01. Persons under the influence of intoxicating liquor or any other drugs or substances not to operate vehicle — Penalty.

  1. A person may not drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if any of the following apply:
    1. That person has an alcohol concentration of at least eight one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving or being in actual physical control of a vehicle.
    2. That person is under the influence of intoxicating liquor.
    3. That person is under the influence of any drug or substance or combination of drugs or substances to a degree which renders that person incapable of safely driving.
    4. That person is under the combined influence of alcohol and any other drugs or substances to a degree which renders that person incapable of safely driving.
    5. That individual refuses to submit to any of the following:
      1. 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 39-06.2-10.2 if the individual is driving or is in actual physical control of a commercial motor vehicle; or
      2. 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.
    6. Subdivision e does not apply to an individual unless the individual has been advised of the consequences of refusing a chemical test consistent with the Constitution of the United States and the Constitution of North Dakota.
  2. An individual who operates a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this state who refuses to submit to a chemical test, or tests, required under section 39-06.2-10.2 or 39-20-01, is guilty of an offense under this section.
  3. An individual violating this section or equivalent ordinance is guilty of a class B misdemeanor for the first or second offense in a seven-year period, of a class A misdemeanor for a third offense in a seven-year period, and of a class C felony for any fourth or subsequent offense within a fifteen-year period. The minimum penalty for violating this section is as provided in subsection 5. The court shall take judicial notice of the fact that an offense would be a subsequent offense if indicated by the records of the director or may make a subsequent offense finding based on other evidence.
  4. Upon conviction of a second or subsequent offense within seven years under this section or equivalent ordinance, the court may order the motor vehicle number plates of all of the motor vehicles owned and operated by the offender at the time of the offense to be destroyed by the office of the police officer that made the arrest. The offender shall deliver the number plates to the court without delay at a time certain as ordered by the court following the conviction. The court shall deliver the number plates to the office and notify the department of the order. An offender who does not provide the number plates to the court at the appropriate time is subject to revocation of probation. The court may make an exception to this subsection, on an individual basis, to avoid undue hardship to an individual who is completely dependent on the motor vehicle for the necessities of life, including a family member of the convicted individual and a co-owner of the motor vehicle, or if the offender is participating in the twenty-four seven sobriety program.
  5. A person convicted of violating this section, or an equivalent ordinance, must be sentenced in accordance with this subsection.
      1. For a first offense, the sentence must include both a fine of at least five hundred dollars and an order for addiction evaluation by an appropriate licensed addiction treatment program.
      2. In addition, for a first offense when the convicted person has an alcohol concentration of at least sixteen one-hundredths of one percent by weight, the offense is an aggravated first offense and the sentence must include a fine of at least seven hundred fifty dollars and at least two days’ imprisonment.
    1. For a second offense within seven years, the sentence must include at least ten days’ imprisonment, of which forty-eight hours must be served consecutively; a fine of one thousand five hundred dollars; an order for addiction evaluation by an appropriate licensed addiction treatment program; and at least three hundred sixty days’ participation in the twenty-four seven sobriety program under chapter 54-12 as a mandatory condition of probation.
    2. For a third offense within seven years, the sentence must include at least one hundred twenty days’ imprisonment; a fine of at least two thousand dollars; an order for addiction evaluation by an appropriate licensed addiction treatment program; at least three hundred sixty days’ supervised probation; and at least three hundred sixty days’ participation in the twenty-four seven sobriety program under chapter 54-12 as a mandatory condition of probation.
    3. For a fourth or subsequent offense within fifteen years, the sentence must include at least one year and one day’s imprisonment; a fine of at least two thousand dollars; an order for addiction evaluation by an appropriate licensed treatment program; at least two years’ supervised probation; and participation in the twenty-four seven sobriety program under chapter 54-12 as a mandatory condition of probation.
    4. The imposition of sentence under this section may not be deferred under subsection 4 of section 12.1-32-02 for an offense subject to this section.
    5. If the offense is subject to subdivision a or b, a municipal court or district court may not suspend a sentence, but may convert each day of a term of imprisonment to ten hours of community service for an offense subject to paragraph 2 of subdivision a. If the offense is subject to subdivision c, the district court may suspend a sentence, except for sixty days’ imprisonment, under subsection 3 of section 12.1-32-02 on the condition that the defendant first undergo and complete an evaluation for alcohol and substance abuse treatment and rehabilitation. If the offense is subject to subdivision d, the district court may suspend a sentence, except for one year’s imprisonment, under subsection 3 of section 12.1-32-02 on the condition that the defendant first undergo and complete an evaluation for alcohol and substance abuse treatment and rehabilitation. If the defendant is found to be in need of alcohol and substance abuse treatment and rehabilitation, the district court may order the defendant placed under the supervision and management of the department of corrections and rehabilitation and is subject to the conditions of probation under section 12.1-32-07. The district court may require the defendant to complete alcohol and substance abuse treatment and rehabilitation under the direction of the drug court program as a condition of probation in accordance with rules adopted by the supreme court. The district court may terminate probation under this section when the defendant completes the drug treatment program. If the district court finds that a defendant has failed to undergo an evaluation or complete treatment or has violated any condition of probation, the district court shall revoke the defendant’s probation and shall sentence the defendant in accordance with this subsection.
    6. For purposes of this section, conviction of an offense under a law or ordinance of another state which is equivalent to this section must be considered a prior offense if such offense was committed within the time limitations specified in this section.
    7. If the penalty mandated by this section includes imprisonment or placement upon conviction of a violation of this section or equivalent ordinance, and if an addiction evaluation has indicated that the defendant needs treatment, the court may order the defendant to undergo treatment at an appropriate licensed addiction treatment program under subdivision g of subsection 1 of section 12.1-32-02 and the time spent by the defendant in the treatment must be credited as a portion of a sentence of imprisonment or placement under this section. A court may not order the department of corrections and rehabilitation to be responsible for the costs of treatment in a private treatment facility.
    8. If the court sentences an individual to the legal and physical custody of the department of corrections and rehabilitation, the department may place the individual in an alcohol treatment program designated by the department. Upon the individual’s successful completion of the alcohol treatment program, the department shall release the individual from imprisonment to begin the court-ordered period of probation. If there is not any court-ordered period of probation, the court may order the individual to serve the remainder of the sentence of imprisonment on supervised probation and the terms and conditions must include participation in the twenty-four seven sobriety program and any terms and conditions of probation previously imposed by the court. Probation under this subsection may include placement in another facility or treatment program. If an individual is placed in another facility or treatment program after release from imprisonment, the remainder of the individual’s sentence of imprisonment must be considered time spent in custody. Individuals incarcerated under this section subsequent to a second probation revocation are not eligible for release from imprisonment upon the successful completion of treatment.
    9. If the individual has participated in the twenty-four seven sobriety program as a condition of pretrial release or for the purpose of receiving a temporary restricted operator’s license under section 39-06.1-11, the sentencing court may give credit for the time the individual has already served on the twenty-four seven sobriety program when determining the amount of time the individual must serve on the twenty-four seven sobriety program for the purposes of probation, if that individual has not violated the twenty-four seven sobriety program before sentencing.
  6. As used in subdivisions b and c of subsection 5, the term “imprisonment” includes house arrest. As a condition of house arrest, a defendant may not consume alcoholic beverages. The house arrest must include a program of electronic home detention and the defendant shall participate in the twenty-four seven sobriety program. The defendant shall defray all costs associated with the electronic home detention. For an offense under subdivision b or c of subsection 5, no more than ninety percent of the sentence may be house arrest.
  7. As used in this title, participation in the twenty-four seven sobriety program under chapter 54-12 means compliance with sections 54-12-27 through 54-12-31, and requires sobriety breath testing twice per day seven days per week or electronic alcohol monitoring, urine testing, or drug patch testing. The offender is responsible for all twenty-four seven sobriety program fees and the court may not waive the fees. For purposes of this section, the twenty-four seven sobriety program is a condition of probation and a court may not order participation in the program as part of the sentence. If an individual ordered to participate in the twenty-four seven program is not a resident of this state, that individual shall enroll in a twenty-four seven program or an alcohol compliance program if available in that individual’s state of residence and shall file proof of such enrollment.

The fact any person charged with violating this section is or has been legally entitled to use alcohol or other drugs or substances is not a defense against any charge for violating this section. It is an affirmative defense that a drug was used only as directed or cautioned by a practitioner who legally prescribed or dispensed the drug to that person. If the individual violated subdivisions a, b, c, or d of this subsection and subdivision e of this subsection and the violations arose from the same incident, for purposes of suspension or revocation of an operator’s license, the violations are deemed a single violation and the court shall forward to the department of transportation only the conviction for driving under the influence or actual physical control.

Source:

S.L. 1923, ch. 254, §§ 1, 2; 1925 Supp., §§ 2976t10, 2976t11; S.L. 1927, ch. 162, §§ 2, 62; R.C. 1943, § 39-0801; S.L. 1949, ch. 250, § 1; 1953, ch. 247, § 1; 1957 Supp., § 39-0801; S.L. 1959, ch. 286, § 13; 1961, ch. 259, § 1; 1969, ch. 342, § 1; 1971, ch. 371, § 1; 1973, ch. 302, § 1; 1975, ch. 106, §§ 434, 673; 1975, ch. 342, § 1; 1975, ch. 343, § 1; 1975, ch. 344, § 2; 1977, ch. 350, § 2; 1977, ch. 356, § 1; 1981, ch. 394, § 1; 1981, ch. 395, § 1; 1981, ch. 486, § 16; 1983, ch. 415, § 21; 1985, ch. 429, § 8; 1987, ch. 460, § 7; 1989, ch. 158, § 14; 1991, ch. 394, § 6; 1993, ch. 382, § 2; 1993, ch. 387, § 1; 1993, ch. 388, § 1; 1997, ch. 323, § 2; 1999, ch. 112, § 3; 1999, ch. 346, § 1; 2001, ch. 346, § 1; 2001, ch. 347, § 1; 2003, ch. 316, § 2; 2003, ch. 323, § 1; 2005, ch. 333, § 1; 2008, ch. 335, § 1; 2009, ch. 335, § 1; 2013, ch. 294, § 2; 2013, ch. 301, § 7; 2015, ch. 267, § 1, effective August 1, 2015; 2015, ch. 268, § 6, effective April 15, 2015; 2017, ch. 108, § 14, effective April 21, 2017; 2017, ch. 268, §§ 1, 2, effective August 1, 2017; 2019, ch. 186, § 5, effective August 1, 2019; 2019, ch. 322, §§ 1, 2, effective April 9, 2019.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 267, S.L. 2015 became effective August 1, 2015.

The 2015 amendment of this section by section 6 of chapter 268, S.L. 2015 became effective April 15, 2015, pursuant to an emergency clause in section 15 of chapter 268, S.L. 2015.

Note.

Section 39-08-01 was amended 3 times by the 2017 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 2 of Chapter 268, Session Laws 2017, Senate Bill 2176; Section 1 of Chapter 268, Session Laws 2017, Senate Bill 2176; and Section 14 of Chapter 108, Session Laws 2017, House Bill 1041.

This section is set out above to reflect a correction since the 2015 cumulative supplement. Additional 2015 amendments were incorporated into this section.

Section 14 of chapter 268, S.L. 2015 provides, “RETROACTIVE APPLICATION. Subsection 1 of section 39-08-01, as amended by section 6 of this Act, applies retroactively to violations of subdivision a, b, c, or d of subsection 1 of section 39-08-01 and subdivision e of subsection 1 of section 39-08-01 which arose from the same incident and which occurred on or after June 30, 2013.”

Section 39-08-01 was amended 2 times by the 2015 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in section 1 of chapter 267, Session Laws 2015, Senate Bill 2154; and section 6 of chapter 268, Session Laws 2015, Senate Bill 2052.

Cross-References.

Applicability of provisions relating to driving under the influence, see § 39-10-01.

Arrest without warrant authorized, see § 29-06-15.

Attempt to contact parents of child taken into custody for violating this section to explain implied consent chemical testing requirements, see § 39-20-01.

City’s power to prohibit driving while intoxicated, see § 40-05-02.

Implied consent law, see ch. 39-20.

Implied consent to determine alcoholic and drug content of blood, see § 39-20-01.

Licensing substance abuse treatment programs, see ch. 50-31.

Notice to enroll in treatment program, enforcement, see § 39-06.1-10.

Open container law, see § 39-08-18.

Procedure for disposition of noncriminal violations unavailable for certain offenses, see § 39-06.1-05.

Temporary restricted license, limitation on issuance to violators, see § 39-06.1-11.

Notes to Decisions

Constitutionality.

This statute provided adequate notice of proscribed conduct to defendant who was found intoxicated but unconscious behind the wheel of his parked car, and therefore, this section was not constitutionally vague as applied to that defendant. State v. Schwalk, 430 N.W.2d 317, 1988 N.D. LEXIS 199 (N.D. 1988).

The application of the offense of being in actual physical control of a motor vehicle to private property is not an unnecessary and unprotected intrusion upon private property. Persons in their houses or curtilages are still protected from unlawful search and seizure and from arrest without probable cause. Wiederholt v. Director, N.D. Dep't of Transp., 462 N.W.2d 445, 1990 N.D. LEXIS 219 (N.D. 1990), overruled in part, Suelzle v. N.D. DOT, 2020 ND 206, 949 N.W.2d 862, 2020 N.D. LEXIS 211 (N.D. 2020).

Subdivision (1)(a) of this section and N.D.C.C. § 39-20-07(3) are not unconstitutionally overbroad and did not violate appellant’s substantive due process rights guaranteed by the Fourteenth Amendment to the United States Constitution and N.D. Const., Art. I, § 12. City of Fargo v. Stensland, 492 N.W.2d 591, 1992 N.D. LEXIS 232 (N.D. 1992).

There is no constitutional right to drink and drive even if a person’s blood-alcohol content does not meet or exceed the statutory blood-alcohol content limit while operating or controlling a vehicle. City of Fargo v. Stensland, 492 N.W.2d 591, 1992 N.D. LEXIS 232 (N.D. 1992).

Charge.
— Amendment.

District court did not abuse its discretion when it denied the State of North Dakota’s motion to amend the charge against defendant and rejected the plea agreement because the court followed the legislative directive when it determined that the offense would been defendant’s fourth driving under the influence of alcohol offense, not defendant’s third. Furthermore, the court explained why the State negotiated the plea agreement and why the court rejected the agreement. State v. Louser, 2021 ND 89, 959 N.W.2d 883, 2021 N.D. LEXIS 92 (N.D. 2021).

Defenses.

District court properly denied defendant’s motion to dismiss her charge of DUI-Refusal under a municipal code; in arguing that subsection (1)(f) required advice of criminal penalties for refusing a chemical breath test to drivers before they could be prosecuted, defendant essentially asked the supreme court to restore the statutory exclusionary rule that was removed, but the supreme court declined to require that which the Legislature expressly eliminated when it amended the statute. City of Jamestown v. Nygaard, 2021 ND 172, 965 N.W.2d 47, 2021 N.D. LEXIS 171 (N.D. 2021).

Refusal of Blood Alcohol Content Test.

Plain language of subsection (1)(f) does not require advice of criminal penalties to drivers before they can be charged with refusing a chemical breath test; because subsection (1)(f) is not ambiguous, the supreme court cannot ignore the plain wording of the statute, even when there is evidence of a different meaning contained in some legislative history. City of Jamestown v. Nygaard, 2021 ND 172, 965 N.W.2d 47, 2021 N.D. LEXIS 171 (N.D. 2021).

Criminal refusal statute, N.D.C.C. § 39-08-01(1)(e), did not violate defendant's rights under the Fourth Amendment or N.D. Const. art. I, § 8 because (1) an officer had reasonable suspicion to believe defendant was driving under the influence of alcohol, and (2) defendant was not forced to submit to the test. State v. Baxter, 2015 ND 107, 863 N.W.2d 208, 2015 N.D. LEXIS 102 (N.D. 2015), vacated, 2016 ND 181, 885 N.W.2d 64, 2016 N.D. LEXIS 182 (N.D. 2016), vacated, — U.S. —, 136 S. Ct. 2539, 195 L. Ed. 2d 863, 2016 U.S. LEXIS 4305 (U.S. 2016).

Criminal refusal statute, N.D.C.C. § 39-08-01(1)(e), did not violate defendant's substantive due process rights because (1) refusal of an onsite screening or chemical test did not implicate a fundamental right, and (2) the State had a compelling interest in regulating intoxicated drivers, and the statute was narrowly drawn to further only the State's compelling interest. State v. Baxter, 2015 ND 107, 863 N.W.2d 208, 2015 N.D. LEXIS 102 (N.D. 2015), vacated, 2016 ND 181, 885 N.W.2d 64, 2016 N.D. LEXIS 182 (N.D. 2016), vacated, — U.S. —, 136 S. Ct. 2539, 195 L. Ed. 2d 863, 2016 U.S. LEXIS 4305 (U.S. 2016).

“Actual Physical Control”.
—In General.

A person may be in “actual physical control” of a motor vehicle within meaning of this section even though he has parked it; motorist’s allegation that ignition was off and transmission not engaged did not preclude finding that he was in “actual physical control”. State v. Ghylin, 250 N.W.2d 252, 1977 N.D. LEXIS 223 (N.D. 1977).

Individual who sat alone in vehicle on passenger side, and started the vehicle so that the heater could be used, was in “actual physical control” of the vehicle when it lurched forward and struck a building. City of Valley City v. Berg, 394 N.W.2d 690, 1986 N.D. LEXIS 418 (N.D. 1986).

Defendant who was found slumped over the steering wheel of his pickup, which was parked on the side of the road with the engine running and the headlights on, was in “actual physical control” of the vehicle for the purpose of this section. State v. Schwalk, 430 N.W.2d 317, 1988 N.D. LEXIS 199 (N.D. 1988).

The officer had reasonable grounds to believe that the defendant was in actual physical control of a motor vehicle while under the influence of intoxicating liquor, where the officer observed a vehicle on a public parking area with a person behind the steering wheel and keys in the ignition, the officer detected a strong odor of alcohol after arousing the defendant and noted bloodshot eyes and dilated pupils, and the defendant was given several field sobriety tests which he performed poorly. Buck v. North Dakota State Highway Comm'r, 425 N.W.2d 370, 1988 N.D. LEXIS 143 (N.D. 1988).

The court declines to hold, as a matter of law, that a person must be observed in a vehicle in order to be found in actual physical control of that vehicle. Salvaggio v. North Dakota Dep't of Transp., 477 N.W.2d 195, 1991 N.D. LEXIS 181 (N.D. 1991).

Where defendant was seen by officer attempting to put tire chains on a running vehicle and officer heard him saying “all I got to do is get the chain on and I’ll be able to get out.” These circumstances demonstrate defendant’s attempt to free the vehicle from the ditch in order to continue his journey and are, therefore, evidence of his real control of the vehicle. Salvaggio v. North Dakota Dep't of Transp., 477 N.W.2d 195, 1991 N.D. LEXIS 181 (N.D. 1991).

Defendant’s control of a bus while it was being pushed by another vehicle constituted “driving” under this section. State v. Larson, 479 N.W.2d 472, 1992 N.D. LEXIS 1 (N.D. 1992).

Where officer observed motorist attempting to dig his vehicle out of a snowbank and noted the motorist’s speech was slurred and that there was a strong odor of alcohol on his breath, officer had probable cause to arrest defendant for driving while intoxicated even though motorist was not operating the vehicle at the time. Henderson v. Dir., N.D. DOT, 2002 ND 44, 640 N.W.2d 714, 2002 N.D. LEXIS 45 (N.D. 2002).

District court properly found defendant guilty of actual physical control of a vehicle while under the influence in violation of a municipal code because the relevant portion of the code was the equivalent to a violation the Century Code, neither of which specified a culpability requirement, defendant failed to show there were no other legal alternatives to violating the law inasmuch as there was no evidence defendant was prevented from returning to the party, borrowing another attendee’s phone to call for a ride, asking an attendee for a ride, or asking to stay at the home where the party was hosted. City of Fargo v. Nikle, 2019 ND 79, 924 N.W.2d 388, 2019 N.D. LEXIS 73 (N.D. 2019).

—Intent.

The intent of the actual physical control offense is to deter intoxicated individuals from entering their vehicles and ultimately becoming a menace to others. Wiederholt v. Director, N.D. Dep't of Transp., 462 N.W.2d 445, 1990 N.D. LEXIS 219 (N.D. 1990), overruled in part, Suelzle v. N.D. DOT, 2020 ND 206, 949 N.W.2d 862, 2020 N.D. LEXIS 211 (N.D. 2020).

Even if defendant only intends to be a passenger, by sitting in driver’s seat intoxicated, his position makes him capable of operating a vehicle. City of Fargo v. Novotny, 1997 ND 73, 562 N.W.2d 95, 1997 N.D. LEXIS 71 (N.D. 1997).

—On Private Property.

Motorist in control of a motor vehicle located in a private open field off the highway was properly subject to arrest for actual physical control of a motor vehicle while under the influence of alcohol. State v. Novak, 338 N.W.2d 637, 1983 N.D. LEXIS 380 (N.D. 1983).

This section and N.D.C.C. § 39-10-01 must be construed together as a prohibition against being in actual physical control of a vehicle while under the influence of alcohol on private property as well as the highways. Wiederholt v. Director, N.D. Dep't of Transp., 462 N.W.2d 445, 1990 N.D. LEXIS 219 (N.D. 1990), overruled in part, Suelzle v. N.D. DOT, 2020 ND 206, 949 N.W.2d 862, 2020 N.D. LEXIS 211 (N.D. 2020).

The language “elsewhere” found in subsection (2) of N.D.C.C. § 39-10-01 extended this section to private property. This extension included the offense of being in actual physical control. Wiederholt v. Director, N.D. Dep't of Transp., 462 N.W.2d 445, 1990 N.D. LEXIS 219 (N.D. 1990), overruled in part, Suelzle v. N.D. DOT, 2020 ND 206, 949 N.W.2d 862, 2020 N.D. LEXIS 211 (N.D. 2020).

This section applies to physical control of a vehicle on private property. Fetzer v. Director, North Dakota Dep't of Transp., 474 N.W.2d 71, 1991 N.D. LEXIS 150 (N.D. 1991), overruled in part, Suelzle v. N.D. DOT, 2020 ND 206, 949 N.W.2d 862, 2020 N.D. LEXIS 211 (N.D. 2020).

—Sleeping In Vehicle.

A person may be in “actual physical control” of a vehicle under this section even though they are asleep or unconscious when found by the arresting officer. State v. Schwalk, 430 N.W.2d 317, 1988 N.D. LEXIS 199 (N.D. 1988).

The court concluded that the hearing officer did not err as a matter of law in determining that the arresting officer had reasonable grounds to believe that defendant was in actual physical control while under the influence in violation of this section where the officer observed a man sleeping in an illegally parked vehicle on a city street in the early morning hours, with a key in the ignition, and where the well-known signs and scents of intoxication pervaded and he performed poorly on field sobriety tests. Wolf v. North Dakota Highway Comm'r, 458 N.W.2d 327, 1990 N.D. LEXIS 138 (N.D. 1990).

Defendant was properly subject to arrest for actual physical control of vehicle while under the influence of alcohol where defendant was found sleeping in his vehicle, which was parked in a restaurant parking lot, the ignition keys were within easy reach in his coat pocket, and officer saw indicia of intoxication when he awakened defendant. City of Fargo v. Theusch, 462 N.W.2d 162, 1990 N.D. LEXIS 207 (N.D. 1990).

When a police officer could not be sure whether the driver, slumped over the steering wheel, was simply sleeping or in need of assistance, the officer, as a result of the encounter, had reasonable grounds to believe that the driver was in actual physical control of the vehicle as contemplated by this section. Rist v. N.D. DOT, 2003 ND 113, 665 N.W.2d 45, 2003 N.D. LEXIS 127 (N.D. 2003).

Administrative Proceedings.
—Collateral Estoppel.

Administrative hearing officer’s determination of whether an officer has reasonable suspicion to stop a moving vehicle does not preclude litigation of the issue in the related criminal proceeding. State v. Storbakken, 552 N.W.2d 78, 1996 N.D. LEXIS 189 (N.D. 1996).

—Constitutional Protections.

Constitutional protections afforded in criminal proceedings are not applicable in administrative license suspension proceedings. Fasching v. Backes, 452 N.W.2d 324, 1990 N.D. LEXIS 54 (N.D. 1990).

Where there was no evidence to suggest that defendant’s Intoxilyzer test was improperly administered, the results of her Intoxilyzer test were properly admitted into evidence at a civil administrative hearing, despite the fact that evidence was allegedly obtained in violation of provisions of N.D.C.C. § 29-05-20 relating to defendant’s right to an attorney. Fasching v. Backes, 452 N.W.2d 324, 1990 N.D. LEXIS 54 (N.D. 1990).

—Res Judicata.

A county court order suppressing evidence in a related criminal proceeding upon a conclusion that an officer lacked probable cause to arrest was, like a dismissal or acquittal, irrelevant to the disposition of administrative proceedings; thus, a county court decision in a criminal proceeding on the issue of reasonable grounds or probable cause to arrest was not res judicata in an appeal from an earlier administrative decision. Williams v. North Dakota State Highway Comm'r, 417 N.W.2d 359, 1987 N.D. LEXIS 462 (N.D. 1987).

Cancellation of license revocation hearing based on refusal to submit to chemical test did not operate as res judicata barring subsequent DUI license suspension proceedings. Fuchs v. Moore, 1999 ND 27, 589 N.W.2d 902, 1999 N.D. LEXIS 29 (N.D. 1999).

Application of 1983 Amendment.

The 1983 amendment to this section does not apply to offenses committed prior to the effective date of the amendment, July 1, 1983; therefore, even though the sentence imposed was within the maximum range permitted by the section at the time the offense was committed, it was improper for trial court to sentence defendant under the provisions of this section as amended in 1983 upon her conviction for driving while under the influence of alcohol when the offense was committed prior to the effective date of the 1983 amendment. State v. Goodbird, 344 N.W.2d 483, 1984 N.D. LEXIS 251 (N.D. 1984).

Bond Forfeiture.

Under N.D.C.C. § 39-06-30, a bond forfeiture for failing to appear for trial on a charge of violating this section or an equivalent ordinance is a conviction as long as the forfeiture has not been vacated. City of Minot v. Mattern, 449 N.W.2d 560, 1989 N.D. LEXIS 248 (N.D. 1989).

Where defendant did not show up for trial on driving under influence (DUI) charge and the municipal court granted the city prosecutor’s motion to forfeit his bond, defendant prevented the occurrence of the jurisdictional predicate (a municipal court trial and a determination by the municipal judge) giving rise to his right to secure a jury trial upon appeal (decided prior to 1987 amendments to N.D.C.C. § 40-18-15 and enactment of N.D.C.C. § 40-18-15.1). City of Minot v. Mattern, 449 N.W.2d 560, 1989 N.D. LEXIS 248 (N.D. 1989).

Burden of Proof.

The state’s burden of proof is met by showing that the defendant (1) was driving a motor vehicle on a public way and (2) that, while so driving, he was under the influence of intoxicating liquor. State v. Salhus, 220 N.W.2d 852, 1974 N.D. LEXIS 215 (N.D. 1974).

Charge.
—Adequacy of Charge.

Uniform traffic complaint and summons which listed the charged offense as: “Drove under the Influence of an Intoxicating Beverage with a BAC at or greater than .10% in violation of N.D.C.C.” adequately apprised defendant that he was being charged alternatively with violations of subdivisions (1)(a) and (1)(b) of this section. City of Minot v. Bjelland, 452 N.W.2d 348, 1990 N.D. LEXIS 48 (N.D. 1990).

District court did not err in failing to dismiss an information because defendant had proper notice of the pending charges against him allowing him to prepare a defense; the information tracked the language of N.D.C.C. § 39-08-01.2(2) by alleging that defendant drove under the influence of alcohol in violation of N.D.C.C. § 39-08-01 and caused substantial or serious bodily injury to another State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435, 2015 N.D. LEXIS 242 (N.D. 2015).

—Alternative Charges.

Violations of subdivisions (1)(a) and (1)(b) of this section may be pleaded alternatively. City of Minot v. Bjelland, 452 N.W.2d 348, 1990 N.D. LEXIS 48 (N.D. 1990).

—Sufficiency of Complaint.

Complaint charging accused “drove while under the influence of alcohol” sufficiently charged offense under subdivision (1)(b). State v. Medearis, 165 N.W.2d 688, 1969 N.D. LEXIS 117 (N.D. 1969).

To convict under subdivision (1)(b) of this section, the state must prove that the defendant, while driving a motor vehicle on a public way, lacked the clearness of intellect and control of himself that he would otherwise have. This can be established without evidence of intoxilyzer test results. State v. Whitney, 377 N.W.2d 132, 1985 N.D. LEXIS 437 (N.D. 1985).

Although subdivisions (1)(a) and (b) of this section represented different crimes and the complaint originally filed against defendant referenced only driving under the influence of alcohol or drugs, which falls under subdivision (1)(b) of this section, the trial court did not abuse its discretion by allowing the complaint to be amended to add a count for driving with a blood alcohol concentration of .10 or greater under subdivision (1)(a) of this section where the amendment was served on defendant in advance of trial, defendant had demanded discovery regarding the results of the field chemical test performed on her, and defendant was prepared to defend against both charges at the time of trial. State v. Schwab, 2003 ND 119, 665 N.W.2d 52, 2003 N.D. LEXIS 128 (N.D. 2003).

Although defendant, who was convicted of driving under the influence, argued that he was never personally informed of the charge against him, defendant knew his blood alcohol concentration would be an issue at trial and prepared to defend the charge. Because defendant’s substantial rights were not prejudiced, he could not demonstrate obvious error. City of Grafton v. Wosick, 2013 ND 74, 830 N.W.2d 550, 2013 N.D. LEXIS 74 (N.D. 2013).

Chemical Test Not Required.

A chemical test is not required for a DWI conviction. State v. Shipton, 339 N.W.2d 87, 1983 N.D. LEXIS 363 (N.D. 1983).

Under this section, to sustain a conviction for driving under the influence, though the state must prove that the driver of a motor vehicle on a public highway lacked the clearness of intellect and control that he would otherwise have, an Intoxilyzer test is not necessary for conviction. State v. Pollack, 462 N.W.2d 119, 1990 N.D. LEXIS 208 (N.D. 1990).

A traffic citation alleging driving under the influence or actual physical control charges both a per se violation as well as a general driving under the influence violation; consequently, the results of a blood-alcohol test are not necessary to sustain a driving under the influence or an actual physical control conviction. City of Fargo v. Thompson, 520 N.W.2d 578, 1994 N.D. LEXIS 190 (N.D. 1994).

Concentration of Alcohol.

The legislature has defined one variation of the crime of actual physical control while under the influence of intoxicating liquor as the accused having a “alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test.” Nothing in that definition shifts the burden of proof to the accused. The prosecution must prove each element beyond a reasonable doubt. State v. Vogel, 467 N.W.2d 86, 1991 N.D. LEXIS 40 (N.D. 1991).

Construction.

Based on the laws of statutory interpretation, the “drugs” contemplated in the statute include over-the-counter medications. State v. Bitz, 2008 ND 202, 757 N.W.2d 565, 2008 N.D. LEXIS 224 (N.D. 2008).

Legislature’s deeming a bicycle a “vehicle” under N.D.C.C. § 39-07-01 includes a “vehicle” under N.D.C.C. § 39-08-01. City of Lincoln v. Johnston, 2012 ND 139, 818 N.W.2d 778, 2012 N.D. LEXIS 140 (N.D. 2012).

Bicycle is considered a “vehicle” under N.D.C.C.§ 39-08-01. Thus, in a case in which defendant conditionally pled guilty to driving a vehicle under the influence of intoxicating liquor after he drove his bicycle into a parked vehicle, the district court did not err in concluding that a bicycle is a “vehicle” under N.D.C.C. § 39-08-01. City of Lincoln v. Johnston, 2012 ND 139, 818 N.W.2d 778, 2012 N.D. LEXIS 140 (N.D. 2012).

Costs Assessed Against Violator.

Where, from 1985 to 1987, county collected and retained $1,540 from DUI violations and bond forfeitures and, in each of these cases, the county court assessed costs against the violator but did not impose fines despite a statutorily mandated fine for the violations, the state alleged that the money collected was improperly designated as costs rather than fines and should have been paid into the state treasury for the benefit of the state school fund. This action was actually an appeal from the county court proceedings, wherein the costs were assessed, to “correct” the alleged improper designation as costs rather than fines, and the district court had no appellate or original jurisdiction over the county court in such matters and the time for any appeal had long since expired. State ex rel. Rayl v. Hettinger County, 467 N.W.2d 98, 1991 N.D. LEXIS 53 (N.D. 1991).

Defenses.

Defense set forth in N.D.C.C. § 39-08-01(1) protects a person only insofar as that person has been prescribed a drug, and has taken that drug as instructed by a physician. There is no protection in the statute for non-prescribed drugs, for the effects of non-prescribed drugs interacting with one another, or for the effects of those non-prescribed drugs interacting with a prescribed medication. State v. Bitz, 2008 ND 202, 757 N.W.2d 565, 2008 N.D. LEXIS 224 (N.D. 2008).

Defendant’s conviction for driving under the influence of drugs was supported by the evidence because, had Tramadol been the only drug found in defendant’s system at the time defendant was arrested, the exception in N.D.C.C. § 39-08-01(1) would have been a defense under the circumstances of the arrest. Defendant, however, tested positive for five different drugs, and the jury could have rationally concluded that the presence and combination of the drugs had caused the impairment. State v. Bitz, 2008 ND 202, 757 N.W.2d 565, 2008 N.D. LEXIS 224 (N.D. 2008).

Detention.

Where, during the course of their detention, defendants were given an opportunity to use the telephone and one defendant was given access to the police record and other vital information, the trial court’s finding that defendants suffered actual prejudice from an illegal detention was not supported by sufficient competent evidence and was against the manifest weight of the evidence; the trial court erred in dismissing the driving under the influence charges against defendants. City of Fargo v. Thompson, 520 N.W.2d 578, 1994 N.D. LEXIS 190 (N.D. 1994).

Double Jeopardy.

Criminal and administrative proceedings for the same conduct do not constitute double jeopardy because the administrative action serves the remedial goal of protecting the public from impaired drivers, and the suspension of the license is not greatly disproportionate to the remedial goal. State v. Zimmerman, 539 N.W.2d 49, 1995 N.D. LEXIS 181 (N.D. 1995).

Administrative proceedings suspending drivers’ licenses are civil in nature, separate and distinct from any criminal proceedings from an arrest for violating this section, and dismissal or acquittal of a related criminal charge is irrelevant to the administrative proceedings. State v. Zimmerman, 539 N.W.2d 49, 1995 N.D. LEXIS 181 (N.D. 1995).

A lengthy administrative suspension of a driver’s license for repeated drunk driving is remedial, and not punishment that would bar later criminal prosecution because of double jeopardy. State v. Barth, 545 N.W.2d 162, 1996 N.D. LEXIS 66 (N.D. 1996).

Elements of Offense.
—In General.

Hearing officer could reasonably conclude the driver was able to manipulate the vehicle’s controls and the police officer had reasonable grounds to believe the driver was in actual physical control of the vehicle. Painte v. Dir., DOT, 2013 ND 95, 832 N.W.2d 319, 2013 N.D. LEXIS 91 (N.D. 2013).

—Intent.

Intent to operate a motor vehicle is not an element of the offense of actual physical control. City of Fargo v. Novotny, 1997 ND 73, 562 N.W.2d 95, 1997 N.D. LEXIS 71 (N.D. 1997).

Evidence.
—In General.

Operation of motor vehicle may be established by circumstantial evidence; evidence that motorist was alone and asleep in the driver’s seat of automobile parked on the side of the road, with the engine running and the headlights and brake lights on, was sufficient for jury to infer beyond reasonable doubt that motorist drove vehicle to the place where it was found. State v. Fuchs, 219 N.W.2d 842, 1974 N.D. LEXIS 191 (N.D. 1974).

Where the court made limited use of alcohol breath test, due to a lapse in time and the fact that defendant consumed more alcohol during that time-period, the evidence could not be considered prejudicial. City of Bismarck v. Preston, 374 N.W.2d 602, 1985 N.D. LEXIS 407 (N.D. 1985).

In prosecution for driving under the influence of intoxicants, erasure of the defendant’s videotaped performance of physical test did not constitute suppression of apparent exculpatory evidence resulting in a violation of due process, where the defense attorney’s affidavit did not establish that it should have been apparent to the prosecution that the tape was material evidence favorable to the defendant prior to its erasure, notice was not given to the prosecution until the erasure was discovered, and the defendant was found guilty in municipal court where the videotape was part of the record upon which the court found the defendant guilty. City of Bismarck v. Bauer, 409 N.W.2d 90, 1987 N.D. LEXIS 355 (N.D. 1987).

The trial court did not abuse its discretion in permitting the state’s attorney to comment on the defendant’s economic status, where the comments were in response to defense counsel’s characterization or to express his belief in the defendant’s guilt of driving under the influence of intoxicants, where the opinion was based on the evidence regarding blood alcohol tests. State v. Schimmel, 409 N.W.2d 335, 1987 N.D. LEXIS 345 (N.D. 1987).

Where trial court recognized that Intoxilyzer test was not given within two hours of accident, did not use results as conclusive evidence that defendant had more than .10 percent of alcohol by weight, and found that defendant had not drunk any intoxicating liquor after accident, but used test results as relevant circumstantial evidence of violation of subdivision (1)(b) of N.D.C.C. § 39-08-01, results of Intoxilyzer test were properly admitted for that purpose. State v. Falk, 434 N.W.2d 364, 1989 N.D. App. LEXIS 1 (N.D. Ct. App. 1989).

—Admissibility of Blood Test.

Where defendant was charged alternatively with driving upon a public highway with a blood-alcohol concentration in violation of that specified in subdivision (1)(a) of N.D.C.C. § 39-08-01, and with driving upon a public highway while under influence of intoxicating liquor in violation of subdivision (1)(b) of N.D.C.C. § 39-08-01, evidence of results of a blood test to determine blood-alcohol concentration was admissible to help prove defendant was driving while under influence in violation of subdivision (1)(b) of N.D.C.C. § 39-08-01 even though state could not prove test was performed within two hours after driving; however, test not performed within two hours after driving may not be used as evidence to convict for a violation of driving with a prohibited blood-alcohol concentration in violation of subdivision (1)(a) of N.D.C.C. § 39-08-01. State v. Kimball, 361 N.W.2d 601, 1985 N.D. LEXIS 246 (N.D. 1985).

While a two-hour time frame for blood-alcohol testing is crucial for supporting a violation of driving with a blood-alcohol concentration of at least 10 one-hundredths of one percent (now .08), it is not an indispensable element of driving under the influence of alcohol. State v. Pitman, 427 N.W.2d 337, 1988 N.D. LEXIS 169 (N.D. 1988).

Because the state toxicologist has reasons for establishing directions for sample collection and submission for blood specimens, when there is a deviation from the established directions, the state must establish that there were sufficient indicia of reliability in the collection and submission of a blood sample to permit the receipt of the results of a blood-alcohol test. State v. Nygaard, 426 N.W.2d 547, 1988 N.D. LEXIS 172 (N.D. 1988).

Because a defendant did not clearly and unequivocally refuse to submit to a blood test following a citation for driving under the influence of intoxicating liquor but had merely attempted to place conditions on where the blood test would occur, defendant had consented to the test, defendant’s consent was implied by N.D.C.C. § 39-20-01, and defendant’s motion to suppress was properly denied. City of Bismarck v. Bullinger, 2010 ND 15, 777 N.W.2d 904, 2010 N.D. LEXIS 15 (N.D. 2010).

State was required to honor a driver’s subpoena to produce at trial the nurse who drew the driver’s blood if it wished to introduce evidence of the driver’s blood alcohol level, as this was required by N.D.R.Ev. 707 to satisfy the constitutional confrontation requirements of N.D.C.C. § 39-20-07. State ex rel. Roseland v. Herauf, 2012 ND 151, 819 N.W.2d 546, 2012 N.D. LEXIS 161 (N.D. 2012).

N.D.R.Ev. 707 requires the State to produce at trial the individual who drew the defendant’s blood sample to satisfy the requirements of N.D.C.C. § 39-20-07 with respect to the defendant’s constitutional right to confrontation. To the extent previous cases, such as State v. Gietzen, 2010 ND 82, 786 N.W.2d 1, and State v. Friedt, 2007 ND 108, 735 N.W.2d 848, 2007 N.D. LEXIS 108 (N.D. 2007), are inconsistent with this holding, they are overruled. State ex rel. Roseland v. Herauf, 2012 ND 151, 819 N.W.2d 546, 2012 N.D. LEXIS 161 (N.D. 2012).

—Field Sobriety Tests.

No Miranda warning is necessary prior to field sobriety tests. Field sobriety tests are physical and real evidence and are not protected by the Fifth Amendment privilege against self-incrimination. State v. Thomas, 420 N.W.2d 747, 1988 N.D. LEXIS 39 (N.D. 1988).

There was no statutory authority or case law which required that it be proven that field sobriety tests were “fairly administered” before such tests could be admitted into evidence; where the defendant testified that his inability to perform the field sobriety tests was due to the poor lighting, the compacted snow, the cold and windy weather, his weight handicap and his physical handicap, but the arresting officer testified that the lighting, the footing and the weather conditions were adequate, and he did not observe any physical handicaps and that he believed the defendant’s weight would not interefere with his performance of the field sobriety tests, the field sobriety tests were properly admitted by the trial court. State v. Thomas, 420 N.W.2d 747, 1988 N.D. LEXIS 39 (N.D. 1988).

Where a police officer came upon an accident in which an individual inexplicably drove his vehicle into the ditch, noticed that the driver’s breath smelled of alcohol, his eyes were bloodshot, and his speech was slurred, the officer had probable cause to arrest the defendant before he administered the field sobriety test. State v. Pitman, 427 N.W.2d 337, 1988 N.D. LEXIS 169 (N.D. 1988).

—Foundation for Blood Test Results.

While it is not necessary for the state to call all persons who have handled the blood sample in order to introduce the test results, it is incumbent upon the state to show that the sample tested is the same one originally drawn from the defendant; because the state failed to prove that the blood sample tested was the same one drawn from the defendant, the trial court erred in admitting the blood-alcohol test result as evidence. State v. Reil, 409 N.W.2d 99, 1987 N.D. LEXIS 359 (N.D. 1987).

Where the officer failed to seal the vial with one layer of tape and label the vial with the name of the subject and the arresting officer as required by the state toxicologist for blood sample collection and submission and no testimony was provided by the state to verify that the blood sample tested was the same blood collected from the defendant, the trial court erred in admitting the results of the blood-alcohol test. State v. Nygaard, 426 N.W.2d 547, 1988 N.D. LEXIS 172 (N.D. 1988).

Where a police officer failed to seal and label the blood vial as required, and failed to offer testimony to establish a chain of custody, the trial court erred in admitting evidence of the results of the blood-alcohol test. State v. Wright, 426 N.W.2d 3, 1988 N.D. LEXIS 176 (N.D. 1988).

For purposes of driving under the influence and actual physical control cases, certification by the state toxicologist that the blood testing equipment in his laboratory is “in good working order,” is not required to establish the foundation of blood test results. Erickson v. Director, N.D. Dep't of Transp., 507 N.W.2d 537, 1993 N.D. LEXIS 199 (N.D. 1993).

Trial court abused its discretion in impliedly suppressing the results of second blood test and dismissing the charge without giving the state the opportunity to establish chain of custody through means other than unavailable chemist’s testimony, which unavailability did not, in itself, justify suppression of the results of the second blood test; the law does not require that the defendant have the right to subpoena a chemist when that chemist’s analysis is not used to show the defendant’s blood-alcohol content. State v. Zink, 519 N.W.2d 581, 1994 N.D. LEXIS 166 (N.D. 1994).

The statutorily-required foundation for the trial court’s admission of defendant’s blood-test result under N.D.C.C. § 39-20-07 was properly established. State v. Asbridge, 555 N.W.2d 571, 1996 N.D. LEXIS 252 (N.D. 1996).

Trial court did not abuse its discretion in admitting intoxilyzer test results as there was no requirement in N.D.C.C. § 39-20-07 or the North Dakota State Toxicologist’s approved method that a standard solution be used for only 50 tests; whether more than 50 tests were conducted with the solution used for defendant’s test affected the weight, not the admissibility, of the test results. City of Bismarck v. Bosch, 2005 ND 12, 691 N.W.2d 260, 2005 N.D. LEXIS 7 (N.D.), cert. denied, 545 U.S. 1141, 125 S. Ct. 2980, 162 L. Ed. 2d 890, 2005 U.S. LEXIS 5063 (U.S. 2005).

North Dakota State Toxicologist’s analytical report and the directive therein that a standard solution could be used for up to 50 intoxilyzer tests is not a part of the approved method and proof of that fact is not a prerequisite to showing fair administration of the intoxilyzer test or to admission of the test results. City of Bismarck v. Bosch, 2005 ND 12, 691 N.W.2d 260, 2005 N.D. LEXIS 7 (N.D.), cert. denied, 545 U.S. 1141, 125 S. Ct. 2980, 162 L. Ed. 2d 890, 2005 U.S. LEXIS 5063 (U.S. 2005).

—Held Insufficient.

Evidence that defendant, charged with driving under the influence of intoxicating liquor, had been involved in an accident and that a blood sample taken 11/2 hours after the accident showed a blood alcohol content of .12% was insufficient evidence to convict him where there was no testimony that the defendant had consumed any alcoholic beverage before the accident and where it was scientifically possible for the defendant to have obtained a blood-alcohol concentration of .12% during the period of 11/2 hours between the accident and the blood test. State v. Kaloustian, 212 N.W.2d 843, 1973 N.D. LEXIS 134 (N.D. 1973).

Where the only evidence presented at trial which revealed that the defendant’s blood-alcohol content was above 0.10% was the blood-alcohol test results, which were defective for failure to seal and label the vial, substantial prejudice resulted from the admission of the blood-alcohol test results, therefore the error was not harmless and the conviction was reversed. State v. Wright, 426 N.W.2d 3, 1988 N.D. LEXIS 176 (N.D. 1988).

Where a judgment of acquittal was based upon a lack of evidence as to a factual element of the crime of driving under the influence, i.e., proof that defendant had a blood-alcohol concentration of one tenth of one hundredth percent or more within two hours of operation or control of a vehicle, the order for dismissal was based upon factual elements, which could not be appealed under N.D.C.C. § 29-28-07. State v. Meyer, 494 N.W.2d 364, 1992 N.D. LEXIS 247 (N.D. 1992).

—Held Sufficient.

Where the arresting officer testified that he detected the odor of alcohol on defendant’s breath, observed that his pupils were dilated and his speech slurred, and believed that defendant was under the influence of intoxicating liquor, the proof available to the state was not insufficient as a matter of law to convict. State v. Whitney, 377 N.W.2d 132, 1985 N.D. LEXIS 437 (N.D. 1985).

There was sufficient evidence to support a guilty verdict on a charge of driving under the influence under this section without the administration of an Intoxilyzer test where the state provided evidence that defendant driver of motor vehicle on a public highway lacked clearness of intellect and control, testimony of passenger and bartender revealed defendant’s heavy consumption of alcohol, and officer detected an odor of alcohol, slurring of speech and impairment of coordination. State v. Pollack, 462 N.W.2d 119, 1990 N.D. LEXIS 208 (N.D. 1990).

Circumstantial evidence which satisfactorily showed that defendant drove his car off the road only a short time before seeking help in an intoxicated condition was sufficient to warrant DUI conviction. State v. Raulston, 475 N.W.2d 127, 1991 N.D. LEXIS 171 (N.D. 1991).

Evidence was sufficient to support administrative suspension of driver’s license for driving under the influence of alcohol. Wheeling v. Director of N.D. DOT, 1997 ND 193, 569 N.W.2d 273, 1997 N.D. LEXIS 239 (N.D. 1997).

Testimony of law enforcement officers who observed defendant in an intoxicated state combined with the testimony of a passing motorist who saw defendant driving erratically and staggering after the accident was sufficient to support defendant’s DUI conviction. State v. Roberson, 586 N.W.2d 687, 1998 ND App 15, 1998 N.D. App. LEXIS 15 (N.D. Ct. App. 1998).

The state did not have to provide evidence of the defendant’s blood alcohol level when evidence of his slurred speech, bloodshot eyes, lack of balance, and odor of alcohol about him was sufficient for a jury finding that defendant was driving a car under the influence of an intoxicating liquor in violation of this section. State v. Knowels, 2003 ND 180, 671 N.W.2d 816, 2003 N.D. LEXIS 193 (N.D. 2003).

Defendant’s conviction for driving under the influence of drugs was supported by the evidence because, applying the definition of “drug” in N.D.C.C. § 19-03.1-01(13)(b)(c), the statutory language regulating driving under the influence of drugs included over-the-counter medications should they impair an individual’s ability to drive safely. State v. Bitz, 2008 ND 202, 757 N.W.2d 565, 2008 N.D. LEXIS 224 (N.D. 2008).

There was sufficient evidence to convict defendant of operating a vehicle while under the influence of alcohol because a district court was not obligated to believe testimony that a dirt bike was inoperable or that drinking occurred while the bike was being pushed. It was not necessary to decide if defendant was a “driver” based on his ability to direct the movement of the bike by steering and controlling the brakes because there was other evidence of defendant's driving prior to being located by an officer; the officer responded to a complaint about dirt bikes being driven in a recreational area, the officer heard the dirt bikes near the bottom of a dam area, and he saw headlights in the trees. State v. Hennings, 2015 ND 283, 871 N.W.2d 473, 2015 N.D. LEXIS 298 (N.D. 2015).

—Intoxilyzer Test.

To support a conviction for DWI, it is not required to show that defendant was under the influence of alcohol to such an extent that it impaired his ability to operate a motor vehicle. State v. Halvorson, 340 N.W.2d 176, 1983 N.D. LEXIS 408 (N.D. 1983).

In a trial for driving while under the influence of intoxicating liquor, the results of a breathalyzer test were not rendered inadmissible by the administering officer’s use of a discontinued operational checklist, where the checklist was currently approved by the state toxicologist at the time of the arrest, and was not substantively different from the form which replaced it. City of Williston v. Miller, 404 N.W.2d 50, 1987 N.D. LEXIS 300 (N.D. 1987).

Where the defendant failed to offer any rebutting evidence to refute the prima facie showing that his breath test was fair and accurate, the trial court did not err in admitting the certified copies of his breath alcohol test results. State v. Reil, 409 N.W.2d 99, 1987 N.D. LEXIS 359 (N.D. 1987).

In a trial for driving with a blood-alcohol concentration of at least .10%, the admission into evidence of an on-site chemical screening test was harmless error, where in light of two blood-alcohol tests presented to the jury, the prejudicial effect of the screening test was negligible. State v. Schimmel, 409 N.W.2d 335, 1987 N.D. LEXIS 345 (N.D. 1987).

Assuming that the state could not prove that the defendant drove a vehicle within two hours of the Intoxilyzer test, results of the Intoxilyzer test would nevertheless be admissible in a case involving a charge of driving under the influence. State v. Pitman, 427 N.W.2d 337, 1988 N.D. LEXIS 169 (N.D. 1988).

Where the defendant pled guilty to driving under the influence of alcohol; the results of an Intoxilyzer test, regardless of when it was given, would be probative of the question of whether or not he was under the influence of alcohol. State v. Pitman, 427 N.W.2d 337, 1988 N.D. LEXIS 169 (N.D. 1988).

An alcohol breath test cannot be admitted into evidence unless it is properly obtained, fairly administered and administered according to methods approved by the state toxicologist by an individual certified to administer the test but a test is not rendered unfair because of the consumption of alcohol between the time of accident and the administration of the test. State v. Thomas, 420 N.W.2d 747, 1988 N.D. LEXIS 39 (N.D. 1988).

—Physician-Patient Privilege.

Nurse’s observation that defendant accused of DUI did not consume alcohol while under her care was not for the purpose of diagnosis or treatment; thus, her testimony about that fact would not have implicated the physician-patient privilege. State v. Miller, 530 N.W.2d 652, 1995 N.D. LEXIS 59 (N.D. 1995).

—Opinion Testimony of Sobriety.

Opinion testimony of sobriety at a critical time is relevant in defending a driving under the influence or an actual physical control charge. City of Fargo v. Thompson, 520 N.W.2d 578, 1994 N.D. LEXIS 190 (N.D. 1994).

—Refusal to Take Chemical Test.

In prosecution for driving under the influence of intoxicating liquor, evidence regarding the fact that a chemical test for intoxication was refused to be taken by the defendant was not sufficient, standing alone and by itself, to establish the guilt of the defendant, but was a fact which, if proven, could be considered in the light of all other proven facts in deciding the question of guilt or innocence. State v. Murphy, 516 N.W.2d 285, 1994 N.D. LEXIS 112 (N.D. 1994).

District court properly denied defendant's motion to dismiss a criminal charge for refusing to submit to chemical testing because she provided no compelling arguments warranting departure from the holdings and the statute at issue was constitutional under the federal and state constitutions. State v. Mann, 2016 ND 53, 876 N.W.2d 710, 2016 N.D. LEXIS 53 (N.D.), vacated, — U.S. —, 137 S. Ct. 114, 196 L. Ed. 2d 5, 2016 U.S. LEXIS 5206 (U.S. 2016).

—Relevance of Blood Test.

Trial court erred in suppressing blood-test result, even though the test was taken more than two hours after the defendant’s driving, as subdivision (1)(b) of this section would allow such test to be admissible as relevant evidence of intoxication. State v. Allery, 371 N.W.2d 133, 1985 N.D. LEXIS 355 (N.D. 1985).

Results of the blood test administered approximately nine hours after accident were relevant to the amount of alcohol in defendant’s blood at the time of the accident, and were properly admitted into evidence. State v. Miller, 530 N.W.2d 652, 1995 N.D. LEXIS 59 (N.D. 1995).

—Reliability of Chemical Test.

The reliability of a chemical test is normally considered twice in a trial, once by the court for its competence as evidence, and again by the jury for its weight as evidence. Jury instructions should reflect this functional difference consistent with the constitutional burden on the prosecution to prove the test results as an element of the offense charged. State v. Vogel, 467 N.W.2d 86, 1991 N.D. LEXIS 40 (N.D. 1991).

—Suspension of License.

Where a police officer observed a vehicle with jerking and weaving movements and saw it cross over the center line four times in a distance of about two miles, and when he stopped the vehicle, the defendant driver had the odor of alcohol and red bloodshot eyes, a preponderance of the evidence supported the hearing officer’s decision to suspend defendant’s license. Moran v. DOT, 543 N.W.2d 767, 1996 N.D. LEXIS 42 (N.D. 1996).

Suspension of the licensee’s driving privileges for 180 days for DUI was appropriate because the officer had probable cause to arrest since witnesses described the vehicle involved in the accident, it was registered to the licensee, and the officer found the licensee extremely intoxicated. Because the officer had probable cause to arrest the licensee and had a right to remain at his elbow at all times, the officer did not violate the licensee’s Fourth Amendment rights by following him into his bedroom without a warrant. Hoover v. Dir., N.D. DOT, 2008 ND 87, 748 N.W.2d 730, 2008 N.D. LEXIS 95 (N.D. 2008).

“Highway” Defined.

The term “highway” as used herein includes not only the traveled portion of a roadway, but the shoulder and ditch alongside the roadway as well. State v. Fuchs, 219 N.W.2d 842, 1974 N.D. LEXIS 191 (N.D. 1974); State v. Ghylin, 250 N.W.2d 252, 1977 N.D. LEXIS 223 (N.D. 1977).

The parking lot of a private club open only to members and their guests was an area to which the public had access for vehicular use. State v. Thomas, 420 N.W.2d 747, 1988 N.D. LEXIS 39 (N.D. 1988).

“Intoxicating Liquor” Defined.

In keeping with the intent of the legislative assembly, an intoxicating liquor, as contemplated by this section, includes any liquid which, when taken into the body, will intoxicate. Thornton v. North Dakota State Highway Comm'r, 399 N.W.2d 861, 1987 N.D. LEXIS 241 (N.D. 1987).

For the purposes of this section, intoxicating liquors include almost any liquid containing alcohol that could conceivably be consumed for the purposes of intoxication, whether it is beer, whiskey, cough syrup or janitor-in-a-drum. Thornton v. North Dakota State Highway Comm'r, 399 N.W.2d 861, 1987 N.D. LEXIS 241 (N.D. 1987).

Investigatory Stop.

Evidence in the record from the administrative hearing supported the hearing officer’s conclusion that police officer had reasonable grounds to investigate parked vehicle and, as a result of that investigation, had reasonable ground to believe that occupant was in actual physical control of the vehicle under the influence of alcohol. Borowicz v. North Dakota Dep't of Transp., 529 N.W.2d 186, 1995 N.D. LEXIS 55 (N.D. 1995).

Observations of defendant’s vehicle swerving several times between the driving lane and highway shoulder provided an articulable and reasonable suspicion of a law violation to make a valid stop. State v. Graven, 530 N.W.2d 328, 1995 N.D. LEXIS 64 (N.D. 1995).

Although an actual violation is not required for an officer to have reasonable and articulable suspicion to make an investigative stop, the trial court in its analysis required proof of a violation of the exhibition driving statute, and therefore did not apply the appropriate legal standard, in granting motion to suppress evidence supporting charge of driving while under the influence of alcohol. State v. Ova, 539 N.W.2d 857, 1995 N.D. LEXIS 186 (N.D. 1995).

The evidence did not support the finding of a stop before the sheriff smelled the odor of alcohol and thus there was no seizure implicating Fourth Amendment protections; therefore, the district court wrongly suppressed the evidence, dismissing the actual physical control charge. State v. Glaesman, 545 N.W.2d 178, 1996 N.D. LEXIS 72 (N.D. 1996).

Where officer testified that he observed defendant’s pickup twice cross the fog line, the court could have reasonably concluded that officer was a credible witness, and that even though he incorrectly estimated the speed of defendant’s pickup or the initial distance between the two vehicles, the officer had a reasonable and articulable suspicion for stopping defendant’s vehicle. State v. Burris, 545 N.W.2d 192, 1996 N.D. LEXIS 77 (N.D. 1996).

Traffic violation by itself constituted a sufficient reason for officer to stop vehicle driven by defendant, who had exceeded the speed limit by traveling at 40 miles per hour in a 30 miles per hour zone. State v. Storbakken, 552 N.W.2d 78, 1996 N.D. LEXIS 189 (N.D. 1996).

An initial consensual encounter that does not constitute a seizure may justifiably escalate into a stop if an officer acquires a reasonable suspicion or probable cause. State v. Gahner, 554 N.W.2d 818, 1996 N.D. LEXIS 239 (N.D. 1996).

In a driving under the influence case, a motion to suppress evidence was properly denied since there was no violation of the Fourth Amendment or N.D. Const. art. I, § 8, where an officer had the requisite grounds to make a valid investigative stop of a vehicle because defendant had violated N.D.C.C. § 39-10-38(1) by failing to signal a turn. State v. Fasteen, 2007 ND 162, 740 N.W.2d 60, 2007 N.D. LEXIS 159 (N.D. 2007).

Where an officer conducting a traffic stop reasonably suspected that defendant was driving while intoxicated, where the officer asked defendant to submit to field sobriety tests and defendant agreed, but where the officer transported defendant to the police station to perform the sobriety tests because it was cold outside, the transportation of defendant constituted a seizure and was a de facto arrest. Because the officer’s reasonable suspicion of wrongdoing was insufficient to support a valid arrest and because the officer lacked probable cause, the de facto arrest violated defendant’s Fourth Amendment rights, and the trial court properly granted defendant’s motion to suppress evidence. City of Devils Lake v. Grove, 2008 ND 155, 755 N.W.2d 485, 2008 N.D. LEXIS 155 (N.D. 2008).

Judicial notice.

District court erred by taking judicial notice of defendant's prior offenses because the court's ability to do so was limited to matters of pleading, defendant's prior convictions constituted an essential element of her charge that the State still had to prove, the court was required to explain the legal effect of its judicial notice to the jury and clarify that satisfaction of the State burden of persuasion remained solely with the jury. State v. Mann, 2016 ND 53, 876 N.W.2d 710, 2016 N.D. LEXIS 53 (N.D.), vacated, — U.S. —, 137 S. Ct. 114, 196 L. Ed. 2d 5, 2016 U.S. LEXIS 5206 (U.S. 2016).

Jury Instructions.

In a trial under this section, the language of N.D.C.C. § 39-20-07(5) was improperly included in instructions to the jury because it has only to do with the judge’s preliminary function of admitting evidence; it has nothing to do with the jury’s function of weighing the evidence. By telling the jury that the test results were received in evidence when the test was fairly administered, this instruction shifted the burden of disputing the test results to the defendant and violated his right to due process. State v. Vogel, 467 N.W.2d 86, 1991 N.D. LEXIS 40 (N.D. 1991).

Nothing in the jury instructions told the jury that it could weigh the reliability of the intoxilyzer testing method and the test result in determining defendant’s intoxication. The instruction given substantially impaired the truth-finding function of the jury by shifting the burden to defendant to disprove fair administration of the test. This impairment was not cured by other instructions. Therefore, the instruction was prejudicial, not harmless. State v. Vogel, 467 N.W.2d 86, 1991 N.D. LEXIS 40 (N.D. 1991).

The general instructions given by the trial court were adequate to explain the driving under the influence law, though no single instruction given by the trial court explained that a chemical test cannot be used as evidence to convict the defendant of driving with a blood alcohol content of at least .10 if it was given more than two hours after he last drove. State v. Steinmetz, 552 N.W.2d 358, 1996 N.D. LEXIS 188 (N.D. 1996).

Where the verdict forms should have been amended to allow a conviction of either driving under the influence or actual physical control or an acquittal of both, and where the court failed to provide the correct verdict forms and correct instructions on deliberating when a lesser included offense is a possibility, the instruction affected the substantial rights of defendant and was not harmless error. State v. Huber, 555 N.W.2d 791, 1996 N.D. LEXIS 248 (N.D. 1996).

Where evidence was sufficient to show defendant was in actual physical control of vehicle, trial court was not required to instruct jury that intoxicated person’s presence in vehicle as a passenger did not constitute an offense. City of Fargo v. Novotny, 1997 ND 73, 562 N.W.2d 95, 1997 N.D. LEXIS 71 (N.D. 1997).

During appellant’s trial for being in actual physical control of a motor vehicle while under the influence of intoxicating liquor, in violation of N.D.C.C. § 39-08-01(1), the jury instruction on actual physical control was not confusing where it properly informed the jury that one question of fact for them to decide was whether appellant’s vehicle was operable. Hawes v. N.D. DOT, 2007 ND 177, 741 N.W.2d 202, 2007 N.D. LEXIS 180 (N.D. 2007).

State’s comments in closing argument about what North Dakota law provided, in response to defendant’s closing argument, did not result in defendant receiving in unfair trial in a case where defendant was convicted of actual physical control in violation of N.D.C.C. § 39-08-01. The trial court on defendant’s objection instructed the jury to disregard the comment and follow the instructions that the trial court gave the jury, and not only was the jury presumed to have followed the trial court’s jury instructions, but it was required to follow the law pursuant to N.D.C.C. § 29-21-04. State v. Garcia, 2012 ND 11, 812 N.W.2d 328, 2012 N.D. LEXIS 16 (N.D. 2012).

It was not error to give a jury instructions requiring proof of alcohol concentration as an alternative to proof of being under the influence, under N.D.C.C. § 39-08-01(1)(a) and (b), when the information did not refer to alcohol concentration, because (1) the complaint cited N.D.C.C. § 39-08-01, and (2) defendant anticipated the issue, given the denial of defendant's motion to suppress alcohol concentration evidence. State v. Packineau, 2015 ND 180, 865 N.W.2d 414, 2015 N.D. LEXIS 186 (N.D. 2015).

District court did not err in failing to give defendant's requested jury instructions because they were incomplete statements of the law where the first proposed jury instruction did not include a qualification that the limited right to consult with an attorney might not interfere with alcohol testing, and the second proposed jury instruction inaccurately asked the jury to find affirmative refusal in the form of communication between the driver and the law enforcement officer. State v. Keller, 2016 ND 63, 876 N.W.2d 724, 2016 N.D. LEXIS 51 (N.D. 2016).

Lesser Included Offense.

Because the penalties are now different, “actual physical control” (APC) is a lesser included offense of “driving under the influence” (DUI).State v. Huber, 555 N.W.2d 791, 1996 N.D. LEXIS 248 (N.D. 1996).

Miranda Warnings

While Miranda warnings may not be applicable to routine traffic offenses where a driver is detained no longer than is necessary for the issuance of a citation, Miranda warnings should be given before questioning a person who is in custody or deprived of his freedom by the authorities for a more serious offense such as driving while intoxicated. State v. Fields, 294 N.W.2d 404, 1980 N.D. LEXIS 261 (N.D. 1980).

Municipal Ordinance.

In a criminal proceeding for the violation of a city ordinance prohibiting driving while under the influence of intoxicating liquor, and where the penalty could be imprisonment, the prosecution was subject to the rules of criminal procedure. City of Minot v. Whitfield, 71 N.W.2d 766, 1955 N.D. LEXIS 132 (N.D. 1955).

Since the result of the alcohol breath test had a tendency to make the existence of any fact that was of consequence to the determination of the action more probable or less probable than it would have been without the evidence, the evidence was relevant in a prosecution under a municipal ordinance that was identical to the state statute governing driving while under the influence of intoxicating liquor or controlled substances. City of Bismarck v. Preston, 374 N.W.2d 602, 1985 N.D. LEXIS 407 (N.D. 1985).

Prior Conviction Enhancing Punishment.
—In General.

Where enhancement of the penalty from a class B to a class A misdemeanor is sought on the basis of a prior conviction for driving while under the influence of intoxicating liquor, the prior conviction should be alleged in the complaint or information. State v. Edinger, 331 N.W.2d 553, 1983 N.D. LEXIS 258 (N.D. 1983).

A prior conviction that enhances a sentence, but not the seriousness of the offense, is generally not regarded as an element of the offense. City of Fargo v. Cossette, 512 N.W.2d 459, 1994 N.D. LEXIS 45 (N.D. 1994).

Guilty pleas to actual physical possession of a vehicle while under the influence of intoxicating liquor, made by defendant represented by counsel, could be used to enhance sentence of the same defendant subsequently convicted of driving under the influence. State v. Berger, 1999 ND 46, 590 N.W.2d 884, 1999 N.D. LEXIS 50 (N.D. 1999).

Sentencing court is not required to advise a defendant of potential future sentence enhancements based on a guilty plea to a violation of this section. State v. Berger, 1999 ND 46, 590 N.W.2d 884, 1999 N.D. LEXIS 50 (N.D. 1999).

While defendant’s appeal of DUI and DUS convictions was pending, defendant was convicted, again, of DUI and DUS; trial court could properly use DUI and DUS that were pending on appeal for enhancement purposes because the first DUI and DUS were “convictions,” as defined by N.D.C.C. § 39-06-30. State v. Skarsgard, 2007 ND 159, 740 N.W.2d 64, 2007 N.D. LEXIS 167 (N.D. 2007).

—Not Set Out in Complaint.

Where the complaint against the defendant did not indicate a class A misdemeanor and did not set out prior convictions, and the defendant was convicted of driving while under the influence of intoxicating liquor (DUI), the trial court erred in sentencing the defendant for a class A misdemeanor as a third-time offender even though the defendant knew about both the provisions of subdivisions (3) (now subdivision (2)) and his two prior DUI convictions. State v. Gahner, 413 N.W.2d 359, 1987 N.D. LEXIS 399 (N.D. 1987).

—Prior Convictions Ex Post Facto.

Where defendant had prior driving under the influence convictions before effective date of amendment to this section, court did not err in considering, for sentencing purposes, prior convictions; consideration of prior convictions was not ex post facto. State v. Haverluk, 432 N.W.2d 871, 1988 N.D. LEXIS 229 (N.D. 1988).

—Representation by Counsel.

An individual may not be sentenced to mandatory imprisonment for a second driving DUI offense pursuant to subdivision 4 b of this section when his first DUI conviction resulted from an uncounseled guilty plea without evidence of waiver of counsel. State v. Orr, 375 N.W.2d 171, 1985 N.D. LEXIS 409 (N.D. 1985).

Silent record was insufficient to overcome the presumption that defendant’s prior uncounseled DUI conviction was void for enhancement purposes, and the state, in seeking to imprison defendant as a second offender based on his earlier presumptively void uncounseled conviction, had the burden of overcoming this presumption, once defendant raised the issue in a pretrial proceeding by resisting the motion to amend, by showing by parol or other evidence that defendant waived his right to counsel. State v. Orr, 375 N.W.2d 171, 1985 N.D. LEXIS 409 (N.D. 1985).

A DUI conviction cannot be used to enhance the penalty of a subsequent DUI conviction when there is no proof that the defendant waived his right to counsel before pleading guilty to the earlier DUI charge. State v. Johnson, 376 N.W.2d 15, 1985 N.D. LEXIS 416 (N.D. 1985).

In pleading guilty to a third DUI or physical control offense, defendant waived all violations of constitutional rights alleged to have occurred before the guilty plea was entered. Defendant’s guilty plea, accordingly, waived the alleged unconstitutionality of using an uncounseled guilty plea to enhance the penalty of a subsequent DUI conviction. State v. Slapnicka, 376 N.W.2d 33, 1985 N.D. LEXIS 424 (N.D. 1985).

—Sufficient.

In a driving under the influence (DUI) case, computer generated case summaries of prior DUI convictions were sufficient to satisfy the State's burden of proving that defendant had prior convictions and that he either had counsel or waived representation by counsel so that the convictions could have been used to enhance his sentence. State v. Breiner, 2015 ND 176, 865 N.W.2d 446, 2015 N.D. LEXIS 192 (N.D. 2015).

—Waiver of Defects.

In prosecution where defendant was charged with class A misdemeanor for fourth offense of driving while under the influence of alcohol (DUI) in seven-year period, defendant’s 1991 counseled guilty plea waived the alleged defects in the 1988 and 1990 uncounseled guilty pleas; because of defendant’s counseled guilty plea in 1991, the trial court erred in ruling that his uncounseled guilty pleas and resulting DUI convictions in 1988 and 1990 could not be used for enhancement purposes. State v. Keyes, 536 N.W.2d 358, 1995 N.D. LEXIS 144 (N.D. 1995).

Defendant failed to preserve the argument that his sentence was incorrectly enhanced based on his previous convictions for driving under the influence where he had entered a counseled, unconditional guilty plea to driving under the influence under N.D.C.C. § 39-08-01 as a class A misdemeanor. State v. Barnes, 2015 ND 64, 860 N.W.2d 466, 2015 N.D. LEXIS 59 (N.D. 2015).

Probable Cause To Arrest.
—In General.

Defendant had an odor of alcohol on his breath, had bloodshot eyes, stated that he had been drinking, and registered a “fail” on an Alco-Sensor test performed in accordance with the state toxicologist’s approved method. Those facts were sufficient to warrant a person of reasonable caution in believing that an offense had been or was being committed. Thus, the officer had reasonable grounds to believe that plaintiff had been driving a vehicle in violation of this section. Nichols v. Backes, 461 N.W.2d 113, 1990 N.D. LEXIS 199 (N.D. 1990).

Officer had reasonable grounds to believe that defendant had committed the offense of being in actual physical control of a vehicle when he arrested him where the officer received an anonymous tip concerning a possible drunken driver, including a description of the driver, a description of the vehicle, the license number of the vehicle, and the direction the vehicle was traveling upon the highway; where shortly after initiating his search, by following weaving tire tracks in the gravel, the officer discovered the vehicle which had been described in the tip, and upon approaching the vehicle, the officer observed defendant passed out in the front seat, with his feet sticking out of the driver’s side door, and also noted the smell of alcohol; and where after defendant was awakened, he subsequently admitted to having driven the vehicle. Wiederholt v. Director, N.D. Dep't of Transp., 462 N.W.2d 445, 1990 N.D. LEXIS 219 (N.D. 1990), overruled in part, Suelzle v. N.D. DOT, 2020 ND 206, 949 N.W.2d 862, 2020 N.D. LEXIS 211 (N.D. 2020).

Two elements — impairment and indication of alcohol consumption — are necessary to establish probable cause to arrest for driving under the influence. Moran v. DOT, 543 N.W.2d 767, 1996 N.D. LEXIS 42 (N.D. 1996).

Detecting an odor of alcohol is a relevant factor in determining probable cause. Kahl v. Director, North Dakota DOT, 1997 ND 147, 567 N.W.2d 197, 1997 N.D. LEXIS 138 (N.D. 1997).

Where a deputy observed signs of impairment and had reason to believe the impairment was caused by alcohol, there was probable cause to arrest defendant for driving under the influence. Kahl v. Director, North Dakota DOT, 1997 ND 147, 567 N.W.2d 197, 1997 N.D. LEXIS 138 (N.D. 1997).

Officer has probable cause to arrest defendant for driving under the influence of drugs if the officer observes some signs of physical or mental impairment, and has reason to believe that impairment is caused by drugs; therefore, a driver’s license was properly revoked where the evidence showed that the driver operated a vehicle at an excess speed, had red and squinty eyes, failed several field sobriety tests, and the officer detected the odor of marijuana coming from the driver’s vehicle. Sonsthagen v. Sprynczynatyk, 2003 ND 90, 663 N.W.2d 161, 2003 N.D. LEXIS 102 (N.D. 2003).

Probable cause supported the warrantless arrest of the defendant under this section; the defendant had lost consciousness at a restaurant drive-up window behind the wheel of his running motor vehicle, walked unsteadily, failed field sobriety tests, and also had trouble answering the officer’s questions. State v. Waltz, 2003 ND 197, 672 N.W.2d 457, 2003 N.D. LEXIS 214 (N.D. 2003).

Officer had probable cause to believe defendant was driving under the influence of drugs, as (1) defendant’s van was weaving in his lane and was crossing over the yellow line separating the driving lane and turning lane, (2) defendant was belligerent, physically aggressive, and repeatedly used profanity toward officers, (3) throughout a traffic stop defendant was shaking, pacing back and forth, and could not keep still, (4) defendant failed a light reactivity test, and (5) the officer did not notice an odor of alcohol emanating from defendant; thus, the trial court did not err in denying the motion to suppress evidence found during a search incident to defendant’s arrest. State v. Berger, 2004 ND 151, 683 N.W.2d 897, 2004 N.D. LEXIS 280 (N.D. 2004).

In a case involving a license suspension based on a driving under the influence (DUI) case, there was no violation of a licensee’s rights under the Fourth Amendment or N.D. Const. Art. I, § 8; regardless of whether an officer’s initial encounter with the licensee in his front yard constituted a seizure, the officer had a reasonable and articulable suspicion to stop the licensee to investigate a citizen’s complaint regarding erratic driving based partially on the specific description of the car and the fact that the citizen followed the car and waited until police arrived. Further, the officer had probable cause to arrest the licensee for DUI where the licensee failed sobriety tests, had bloodshot and glassy eyes, and admitted to drinking. Sayler v. N.D. DOT, 2007 ND 165, 740 N.W.2d 94, 2007 N.D. LEXIS 158 (N.D. 2007).

—Accident.

Where police officer’s investigation at the scene of the accident revealed that defendant’s pickup was traveling on the wrong side of the road, defendant made no attempt to get out of the way of the tractor-trailer he was approaching, defendant’s pickup struck the tractor-trailer abut 12 feet from the center line, “just about on the shoulder” of the wrong side of the road, and that defendant had an unopened can of beer in his pickup, this evidence, coupled with the lack of any suggestion of another cause of the accident, was sufficient to warrant a man of reasonable caution in believing that the offense of driving in violation of this section had been committed; therefore, the officer had probable cause to direct that defendant he arrested and tested to determine the alcohol content of his blood. State v. Bauder, 433 N.W.2d 552, 1988 N.D. App. LEXIS 13 (N.D. Ct. App. 1988).

Where at the scene of a serious accident, the defendant was found by a police officer unconscious behind the wheel of a motor vehicle, and where the police officer could immediately smell a very strong odor of an alcoholic beverage present, and found unopened cans of beer in a carton on the passenger-side floorboard of the car, and empty beer cans of a different brand outside, there was ample evidence of probable cause to believe that the defendant was under the influence of alcohol. Wilhelmi v. Director of Dep't of Transp., 498 N.W.2d 150, 1993 N.D. LEXIS 51 (N.D. 1993).

Procedures for Mental Health Hearings.

Procedures established for mental health hearings by N.D.C.C. ch. 25-03.1, do not apply to prosecutions under this chapter. State v. Chapin, 429 N.W.2d 16, 1988 N.D. App. LEXIS 7 (N.D. Ct. App. 1988).

Purpose.
—In General.

Purpose of this statute is to deter persons who have been drinking from attempting to operate their motor vehicles, even for a short distance to test their driving ability. State v. Ghylin, 250 N.W.2d 252, 1977 N.D. LEXIS 223 (N.D. 1977).

The intent of the legislature in enacting this section is clear. The purpose of the legislation is to keep individuals who are under the deleterious effects of alcohol off the road. Thornton v. North Dakota State Highway Comm'r, 399 N.W.2d 861, 1987 N.D. LEXIS 241 (N.D. 1987).

The Legislative Assembly’s authorization of both criminal and administrative proceedings upon the arrest of a motorist for driving while under the influence of intoxicating liquor indicates an intention to permit some issues to be litigated twice, thus rendering the doctrine of res judicata inapplicable. Williams v. North Dakota State Highway Comm'r, 417 N.W.2d 359, 1987 N.D. LEXIS 462 (N.D. 1987).

For a case discussing the legislative history of this section, see State v. Vogel, 467 N.W.2d 86, 1991 N.D. LEXIS 40 (N.D. 1991).

—Titles 5 and 19.

The purposes of Title 5 and Title 19 of the North Dakota Century Code are clearly different than the intention of the legislative assembly in enacting this section. Thornton v. North Dakota State Highway Comm'r, 399 N.W.2d 861, 1987 N.D. LEXIS 241 (N.D. 1987).

Refusal of Blood Alcohol Content Test.

If a driver violates this section, and refuses to submit to a test to determine his blood alcohol content, his driver’s license can be revoked under N.D.C.C. § 39-20-04. Fetzer v. Director, North Dakota Dep't of Transp., 474 N.W.2d 71, 1991 N.D. LEXIS 150 (N.D. 1991), overruled in part, Suelzle v. N.D. DOT, 2020 ND 206, 949 N.W.2d 862, 2020 N.D. LEXIS 211 (N.D. 2020).

Subsection (2) of N.D.C.C. § 39-20-04 lists the criteria to be met if a driver who pleads guilty to criminal charges is not to be subject to administrative revocation of his license for refusing a test. These criteria require that the driver not request an administrative hearing and that the driver, within 25 days after issuance of a temporary operator’s permit, both plead guilty to violating this section and notify the department of the plea. Fetzer v. Director, North Dakota Dep't of Transp., 474 N.W.2d 71, 1991 N.D. LEXIS 150 (N.D. 1991), overruled in part, Suelzle v. N.D. DOT, 2020 ND 206, 949 N.W.2d 862, 2020 N.D. LEXIS 211 (N.D. 2020).

When defendant was arrested for driving under the influence, he told the arresting officer that he was not refusing to submit to a blood draw but wanted his attorney present; after he was unable to contact his attorney, a nurse proceeded with the blood test. Defendant’s quiet statement that he did not agree to the blood draw, coupled with his silence when given an opportunity to clarify, failed to effectively withdraw his consent for purposes of N.D.C.C. § 39-20-04; when the district court denied his motion to suppress the blood test results, defendant entered a conditional plea of guilty to a charge of driving under the influence of intoxicating liquor or drugs and/or with an alcohol concentration of eight one-hundredths of one percent or greater by weight, in violation of N.D.C.C. § 39-08-01. State v. Johnson, 2009 ND 167, 772 N.W.2d 591, 2009 N.D. LEXIS 172 (N.D. 2009).

Driver voluntarily consented to a chemical blood test administered by a police officer. The criminal refusal statute, N.D.C.C. § 39-08-01, did not violate the driver's rights under the Fourth Amendment or N.D. Const. art. I, § 8, nor did it violate the Fourth Amendment under the doctrine of unconstitutional conditions. Beylund v. Levi, 2015 ND 18, 859 N.W.2d 403, 2015 N.D. LEXIS 19 (N.D. 2015), vacated, 579 U.S. 438, 136 S. Ct. 2160, 195 L. Ed. 2d 560, 2016 U.S. LEXIS 4058 (U.S. 2016).

Use of defendant's silence as a refusal was not a violation of his Fifth Amendment protection against self-incrimination, nor contrary to the protections of Miranda v. Arizona, 384 U.S. 436 (1966), when coupled with the North Dakota implied consent advisory. State v. Bauer, 2015 ND 132, 863 N.W.2d 534, 2015 N.D. LEXIS 130 (N.D. 2015).

Right to Attorney.
—In General.

Defendant did not have a right to a court-appointed attorney for his arrest, booking, and testing at the police station, events that all took place before his initial court appearance. North Dakota Dep't of Transp. v. DuPaul, 487 N.W.2d 593, 1992 N.D. LEXIS 117 (N.D. 1992).

Under the “totality of the circumstances” test, defendant was not denied the reasonable opportunity to consult with counsel prior to a chemical test in a driving under the influence case because an officer attempted to contact defendant’s attorney, and defendant made no further requests for counsel after contact could not be made. State v. Pace, 2006 ND 98, 713 N.W.2d 535, 2006 N.D. LEXIS 100 (N.D. 2006).

—Indigency.

When arrested for driving under the influence and before consent to alcohol testing, an accused does have a limited and personal right to contact and to consult an attorney of his choice, unless that consultation unreasonably interferes with testing. Indigency does not enlarge this limited right; it does not obligate the arresting officer to find an attorney for the accused. North Dakota Dep't of Transp. v. DuPaul, 487 N.W.2d 593, 1992 N.D. LEXIS 117 (N.D. 1992).

— Invocation of right.

Although defendant, who was convicted of drunk driving, claimed his statement to the arresting officer that “I’ve got to have Cash give me a good try” invoked his statutory right to consult with an attorney before submitting to a chemical test, under the facts of this case, defendant’s statements were not requests to consult with counsel before taking the chemical test. State v. Lee, 2012 ND 97, 816 N.W.2d 782, 2012 N.D. LEXIS 98 (N.D. 2012).

—Length of Time.

Where defendant argued that if a test can reasonably be performed in ten minutes, there is no reason why an arrestee would not have one hour and fifty minutes to consult with an attorney; it is not appropriate to measure the reasonableness of an accused’s opportunity to contact an attorney by the maximum amount of time that the police may have to administer the most useful test to prove a licensee’s intoxication. Boyce v. Backes, 488 N.W.2d 45, 1992 N.D. LEXIS 161 (N.D. 1992).

Sentencing.

The punishments set forth in subdivision (4)(a) are mandatory minimum penalties and because a first-time offender is guilty of a class B misdemeanor under subsection (2), he may be punished in accordance with the punishments specified for a class B misdemeanor in N.D.C.C. § 12.1-32-01(6) — up to a $500 (now $1,000) fine, 30 days’ imprisonment, or both; thus, the trial court was not limited to sentencing the defendant to pay a fine of $250 and to undergo an addiction evaluation. State v. Nelson, 417 N.W.2d 814, 1987 N.D. LEXIS 464 (N.D. 1987).

A defendant who is convicted of driving while under the influence of alcohol may be required to undergo medical treatment, but the defendant must be ordered by the trial court directly, and not indirectly, to undergo treatment. State v. Nelson, 417 N.W.2d 814, 1987 N.D. LEXIS 464 (N.D. 1987).

In sentencing a first time offender convicted of driving under the influence of intoxicating liquor, the trial court erred where it, in effect, delegated its authority to sentence defendant to the addiction evaluator by requiring defendant to “follow the treatment prescribed by the addiction evaluator” in violation of N.D.R.Crim.P. 32(e). State v. Nelson, 417 N.W.2d 814, 1987 N.D. LEXIS 464 (N.D. 1987).

Where a defendant pled guilty to driving while under the influence of intoxicating liquor, the trial court improperly delegated its judicial authority in sentencing him to obey all requirements of the addiction evaluator as a condition of probation. State v. Chapin, 429 N.W.2d 16, 1988 N.D. App. LEXIS 7 (N.D. Ct. App. 1988).

With respect to class B misdemeanor offenses under N.D.C.C. § 39-08-01(2), the enhanced sentencing language under N.D.C.C. § 39-08-01.2(2) (a conviction for driving under the influence of alcohol which results in serious bodily injury to another), requiring at least 90 days incarceration, conflicts with the maximum penalty of 30 days allowed under N.D.C.C. § 12.1-32-01(6) and is invalid and unenforceable. State v. Smith, 697 N.W.2d 368, 2005 ND App 5, 2005 N.D. App. LEXIS 2 (N.D. Ct. App. 2005).

Definition of “offense” in N.D.C.C. § 12.1-01-04(20) applies to N.D.C.C. §§ 39-08-01 and 39-06-42. Title 39 does not provide its own definition of “offense” and there is no expressed intent to use a different definition for N.D.C.C. §§ 39-08-01 or 39-06-42State v. Skarsgard, 2007 ND 159, 740 N.W.2d 64, 2007 N.D. LEXIS 167 (N.D. 2007).

Reviewing court overruled defendant’s assertion that the district court erred in sentencing him to the maximum penalty of one year of incarceration for driving under the influence, a class A misdemeanor, because the district court sentenced defendant within the prescribed statutory limits, and the record did not reflect the court relied on an impermissible sentencing factor. State v. Skarsgard, 2007 ND 160, 739 N.W.2d 786, 2007 N.D. LEXIS 166 (N.D. 2007).

Defendant’s DUI sentence was overturned and, on remand, the trial court was to sentence defendant as a first-time DUI offender in accordance with N.D.C.C. § 39-08-01, within the parameters of N.D.C.C. § 12.1-32-01(6), where the record did not contain evidence of a prior counseled conviction within five years or of a waiver of counsel by defendant in a prior DUI proceeding. State v. Emery, 2008 ND 3, 743 N.W.2d 815, 2008 N.D. LEXIS 9 (N.D. 2008).

Trial court did not abuse its discretion in denying defendant’s request to deviate from a plea agreement because the trial court considered defendant’s criminal history, the commission of new offenses, and defendant’s apparent inability to follow the law. The sentence was appropriate because the trial court followed the parties’ agreement, and the trial court did not enhance defendant’s sentence. State v. Henes, 2009 ND 42, 763 N.W.2d 502, 2009 N.D. LEXIS 51 (N.D. 2009).

Submission of Prior Convictions As Error.

Where defendant stipulates to prior convictions when charged under the enhancement provisions of this section, the submission of evidence of defendant’s prior convictions to a jury constitutes prejudicial and reversible error. State v. Saul, 434 N.W.2d 572, 1989 N.D. LEXIS 7 (N.D. 1989).

Suppression of Evidence.

Although deputy failed to administer Miranda warnings to defendant, only testimonial evidence gathered during the custodial interrogation should have been suppressed; deputy’s observations of defendant’s physical condition and her performance during physical tests, as well as her blood test result, should not have been suppressed. State v. Fasching, 453 N.W.2d 761, 1990 N.D. LEXIS 77 (N.D. 1990).

In a prosecution of defendant for driving under the influence, the district court erred in denying defendant’s suppression motion, where the record lacked sufficient competent evidence to establish a police officer stopped defendant’s vehicle within the officer’s geographical jurisdiction. There was no evidence that the officer was in hot pursuit of the vehicle driven by defendant as that term was defined by N.D.C.C. § 40-20-05(2), nor was there evidence that the officer was assisting other law enforcement officers at the time he stopped the vehicle. State v. Demars, 2007 ND 145, 738 N.W.2d 486, 2007 N.D. LEXIS 145 (N.D. 2007).

Test Method.
—Approved Procedures.

The operating procedure on the back side of an Alco-Sensor device is merely an additional approved method that warrants consideration of Alco-Sensor test results. Thus, the operating procedure on the back side of the Alco-Sensor device was irrelevant in a case in which law enforcement officer’s testimony showed that in administering Alco-Sensor test, he followed the approved method prescribed by the state toxicologist. Nichols v. Backes, 461 N.W.2d 113, 1990 N.D. LEXIS 199 (N.D. 1990).

Where officer’s testimony established that he performed Alco-Sensor test according to the method approved by the state toxicologist, the hearing officer did not err in considering the results of the Alco-Sensor test in determining whether the officer had reasonable grounds to believe that defendant had been driving a vehicle in violation of this section. Nichols v. Backes, 461 N.W.2d 113, 1990 N.D. LEXIS 199 (N.D. 1990).

—Nonalcohol Disinfectant.

The state toxicologist’s directive to use a nonalcohol disinfectant goes to the scientific accuracy and reliability of the blood test. Glaspey v. Backes, 462 N.W.2d 635, 1990 N.D. LEXIS 235 (N.D. 1990).

Since the state toxicologist directs the use of “aqueous solutions of…providone iodine” or any “nonalcoholic, nonvolatile skin disinfectant,” where technician who took blood test candidly acknowledged that she did not know if the providone iodine swab she used contained an aqueous solution of that chemical or if it contained alcohol, the defendant’s conviction would be reversed. Glaspey v. Backes, 462 N.W.2d 635, 1990 N.D. LEXIS 235 (N.D. 1990).

—Written Information.

A post-text correction of the written information on Form 106-I was not such a deviation from the state toxicologist’s approved method as to invalidate the intoxilyzer test. Heinrich v. North Dakota State Highway Comm'r, 449 N.W.2d 587, 1989 N.D. LEXIS 237 (N.D. 1989).

Two-Hour Time Limit.

This section requires a chemical test to be given within two hours of driving if the test is to be used to establish the “per se” offense of driving or being in actual physical control of a vehicle with a blood alcohol concentration of 0.10% or more. Wolf v. North Dakota Highway Comm'r, 458 N.W.2d 327, 1990 N.D. LEXIS 138 (N.D. 1990).

The two-hour time limit contained in this section is merely a partial description of one of the prohibited acts constituting a violation and has nothing to do with admissibility of chemical test results. City of Grand Forks v. Soli, 479 N.W.2d 872, 1992 N.D. LEXIS 31 (N.D. 1992).

Admissibility of chemical test results is governed by N.D.C.C. § 39-20-07, which does not condition admissibility of a chemical test result upon the test’s performance within two hours of an arrested person’s driving of a motor vehicle as prescribed in this section. City of Grand Forks v. Soli, 479 N.W.2d 872, 1992 N.D. LEXIS 31 (N.D. 1992).

The two-hour provision is a restriction on the prosecution of the per se offense in subdivision (1)(a), but does not affect prosecution under subdivision (1)(b) for driving while under the influence of intoxicating liquor. City of Grand Forks v. Risser, 512 N.W.2d 462, 1994 N.D. LEXIS 35 (N.D. 1994).

A violation of N.D.C.C. § 39-06.2-10.1 is a per se violation, and the legislature intended for the chemical test to be performed within two hours of a person driving or being in actual physical control. Pavek v. Moore, 1997 ND 77, 562 N.W.2d 574, 1997 N.D. LEXIS 68 (N.D. 1997), modified, 1997 N.D. LEXIS 118 (N.D. May 13, 1997).

“Under the Influence of Intoxicating Liquor”.

The expression “under the influence of intoxicating liquor” simply means having drunk enough to disturb the action of the physical or mental faculties so that they are no longer in their natural or normal condition; it is not the amount involved, but the effect, that determines whether the person is under the influence. State v. Hanson, 73 N.W.2d 135, 1955 N.D. LEXIS 149 (N.D. 1955).

The expression “under the influence of intoxicating liquor” covers not only the well-known and easily recognized conditions of intoxication but also covers any abnormal mental or physical condition which is the result of indulging, to any extent, in the use of intoxicating liquor, which use tends to deprive the user of that clearness of intellect and control of himself which he would otherwise possess. State v. Glavkee, 138 N.W.2d 663, 1965 N.D. LEXIS 94 (N.D. 1965).

A person may be “under the influence of intoxicating liquor” within the meaning of this section, even though he is not intoxicated. State v. Glavkee, 138 N.W.2d 663, 1965 N.D. LEXIS 94 (N.D. 1965).

When a person is so affected by intoxicating liquor as not to possess that clearness of intellect and control of himself that he would otherwise have, he is “under the influence of intoxicating liquor”. State v. Salhus, 220 N.W.2d 852, 1974 N.D. LEXIS 215 (N.D. 1974).

A person is “under the influence of intoxicating liquor” if that individual has imbibed any liquid containing alcohol which intoxicates or impairs his ability to function adequately while operating a vehicle. Thornton v. North Dakota State Highway Comm'r, 399 N.W.2d 861, 1987 N.D. LEXIS 241 (N.D. 1987).

In subdivision (1)(a), the legislature defined one variation of the crime of actual physical control while under the influence, but this is not the exclusive definition of DUI; subdivision (1)(b) makes it a crime to drive or be in actual physical control of any vehicle while under the influence of intoxicating liquor, and a defendant may be convicted of DUI if the state proves beyond a reasonable doubt that the defendant was driving a vehicle upon a public highway while under the influence of intoxicating liquor so as not to possess the clearness of intellect and control of himself that he would otherwise have. State v. Miller, 530 N.W.2d 652, 1995 N.D. LEXIS 59 (N.D. 1995).

Canadian statute defined an equivalent offense, as the levels of impairment required under each were equivalent, the statutes proscribed essentially the same conduct, driving a vehicle while under the influence of an intoxicating substance, and the differences in potential penalties was not so great as to indicate that the statutes proscribed a qualitatively different offense. Christianson v. Dir., Dep't of Transp., 2020 ND 245, 951 N.W.2d 231, 2020 N.D. LEXIS 254 (N.D. 2020).

Warrantless Chemical Test.

There was sufficient evidence to support the district court's decision that exigent circumstances permitted the warrantless blood-alcohol test because the circumstances included evidence about the limited staffing at law enforcement agencies on the evening of the Thanksgiving holiday, the investigation of a fatal accident rather than a “routine” drunk driving stop, and the natural dissipation of alcohol in defendant's blood system within the relevant timeframe. State v. Morales, 2015 ND 230, 869 N.W.2d 417, 2015 N.D. LEXIS 248 (N.D. 2015).

What Constitutes a “Motor Vehicle”.

Driver of an automobile which was found “high-centered”, with its front wheels on the road and its back wheels in a ditch, was still a “motor vehicle” within the meaning of N.D.C.C. § 39-01-01(38), even though at the time incapable of movement, and the person physically in control of it could properly be convicted under this section. State v. Schuler, 243 N.W.2d 367, 1976 N.D. LEXIS 240 (N.D. 1976).

Collateral References.

Admissibility, in vehicle accident case, of evidence of opposing party’s intoxication where litigant’s pleading failed to allege such fact, 26 A.L.R.2d 359.

Reckless driving, driving while intoxicated as, where driving while intoxicated is made a separate offense, 52 A.L.R.2d 1337.

What is “motor vehicle” within statutes making it offense to drive while intoxicated, 66 A.L.R.2d 1146.

Jury trial: right to trial by jury in criminal prosecution for driving while intoxicated or similar offense, 16 A.L.R.3d 1373.

Drugs, driving under the influence of, or when addicted to use of, as criminal offense, 17 A.L.R.3d 815.

Blood test, admissibility in criminal case of blood alcohol test where blood was taken from unconscious driver, 72 A.L.R.3d 325.

Warrantless arrest, what amounts to violation of drunken driving statute in officer’s “presence” or “view” so as to permit warrantless arrest, 74 A.L.R.3d 1138.

Admissibility of hospital record relating to intoxication or sobriety of patient, 80 A.L.R.3d 456.

What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statute or ordinance, 93 A.L.R.3d 7.

Validity, construction, and application of statutes directly proscribing driving with blood-alcohol level in excess of established percentage, 54 A.L.R.4th 149.

Horizontal gaze nystagmus test: use in impaired driving prosecution, 60 A.L.R.4th 1129.

Vehicular accident, passengers’ liability to vehicular victim for harm caused by intoxicated motor vehicle driver, 64 A.L.R.4th 272.

Driving while intoxicated: “choice of evils” defense that driving was necessary to protect life or property, 64 A.L.R.4th 298.

Cough medicine as “intoxicating liquor” under DUI statute, 65 A.L.R.4th 1238.

Operation of bicycle as within drunk driving statute, 73 A.L.R.4th 1139.

Operation of mopeds and motorized recreational two-, three-, and four-wheeled vehicles as within scope of driving while intoxicated statutes, 32 A.L.R.5th 659.

Intoxication of automobile driver as basis for awarding punitive damages, 33 A.L.R.5th 303.

Validity of police roadblocks or checkpoints for purpose of discovery of alcoholic intoxication — post-Sitz cases, 74 A.L.R.5th 319.

Validity, construction, and application of statute permitting forfeiture of motor vehicle for operating while intoxicated, 89 A.L.R.5th 539.

Vertical gaze nystagmus test: Use in impaired driving prosecution, 117 A.L.R.5th 491.

Claim of diabetic reaction or hypoglycemia as defense in prosecution for driving while under influence of alcohol or drugs, 17 A.L.R.6th 757.

Validity, Construction, and Application of State “Zero Tolerance” Laws Relating to Underage Drinking and Driving, 34 A.L.R.6th 623.

Assimilation, under Assimilative Crimes Act (18 U.S.C.A. § 13), of state statutes relating to driving while intoxicated or under influence of alcohol, 175 A.L.R. Fed. 293.

Law Reviews.

Criminal Law — Accusatory Stage of Proceedings — Custody Test Requires Miranda Warnings after DWI Arrest, 57 N.D. L. Rev. 541 (1981).

Toward a Coordinated Judicial View of the Accuracy of Breath Testing Devices, 59 N.D. L. Rev. 329 (1983).

The Admission of Chemical Test Refusals After State v. Neville: Drunk Drivers Cannot Take the Fifth, 59 N.D. L. Rev. 349 (1983).

The Constitutional Dimensions of Discovery in DWI Cases, 59 N.D. L. Rev. 369 (1983).

The Drive to Stop the Drinker from Driving: Suggested Civil Approaches, 59 N.D. L. Rev. 391 (1983).

Criminal Law — Right to Counsel — A Defendant’s Prior Uncounseled Misdemeanor Convictions May Not Be Used to Enhance Punishment Pursuant to North Dakota’s DUI Statute, 63 N.D. L. Rev. 157 (1987).

Summary of significant decisions rendered by the North Dakota Supreme Court in 1989 relating to driving while intoxicated, 65 N.D. L. Rev. 529 (1989).

Summary of significant decisions rendered by the North Dakota Supreme Court in 1989 relating to sentencing, 65 N.D. L. Rev. 529 (1989).

Summary of the 1991 North Dakota Supreme Court decisions on Driving Under the Influence, 68 N.D. L. Rev. 758 (1991).

Criminal Procedure — Due Process: Towards More Effective Law Enforcement — Utilization of Collective Knowledge to Sustain a Reasonable Suspicion Inquiry, 71 N.D. L. Rev. 797 (1995).

Automobiles — Refusals of Test, Admissibility: North Dakota’s Privilege Against Self-Incrimination as Applied to a Refusal to Submit to a Blood Alcohol Test, 71 N.D. L. Rev. 821 (1995).

Summary of North Dakota Supreme Court decisions on Criminal Law, 72 N.D. L. Rev. 763 (1996).

Summary of North Dakota Supreme Court decisions on Double Jeopardy, 72 N.D. L. Rev. 763 (1996).

Former Jeopardy — Multiple Punishments — Prohibition of Multiple Proceedings or Punishments: A Drunk Driver’s Trivial Constitutional Defense, 73 N.D. L. Rev. 755 (1997).

Indictment and Information Included Offenses: The North Dakota Supreme Court Holds that Actual Physical Control of a Motor Vehicle Under the Influence of Alcohol if a Lesser Included Offense of Driving a Motor Vehicle While Under the Influence of Alcohol, 74 N.D. L. Rev. 787 (1998).

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

North Dakota Supreme Court Review (Henderson v. Director, N.D. Department of Transportation, 2002 ND 44, 640 N.W.2d 714), see 79 N.D. L. Rev. 589 (2003).

Note.

Section 39-08-01 was amended 3 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 322, Session Laws 2019, House Bill 1534; and Section 5 of Chapter 186, Session Laws 2019, House Bill 1050.

39-08-01.1. Prior offenses.

For purposes of this chapter, chapter 39-06.1, and chapter 39-20 a previous conviction does not include any prior violation of section 39-08-01 or equivalent ordinance if the offense occurred prior to July 1, 1981.

Source:

S.L. 1983, ch. 415, § 23.

39-08-01.2. Special punishment for causing injury or death while operating a vehicle while under the influence of alcohol.

  1. An individual is guilty of criminal vehicular homicide if the individual commits an offense under section 39-08-01 or equivalent ordinance and as a result the individual causes a death of another individual to occur, including the death of an unborn child, unless the individual who causes the death of the unborn child is the mother. A violation of this subsection is a class A felony. If an individual commits a violation under this subsection, the court shall impose at least three years’ imprisonment. If the individual violates this section after having been previously convicted of a violation of section 39-08-01 or 39-08-03, or equivalent ordinance, the court shall impose at least ten years’ imprisonment. An individual may not be prosecuted and found guilty of this and an offense under chapter 12.1-16 if the conduct arises out of the same incident.
  2. An individual is guilty of criminal vehicular injury if the individual violates section 39-08-01 or equivalent ordinance and as a result that individual causes substantial bodily or serious bodily injury to another individual. Violation of this subsection is a class C felony. If an individual violates this subsection, the court shall impose at least one year’s imprisonment. If the individual violates this section after having been previously convicted of a violation of section 39-08-01 or 39-08-03 or equivalent ordinance, the court shall impose at least two years’ imprisonment.
  3. The sentence under this section may not be suspended unless the court finds that manifest injustice would result from the imposition of the sentence. Before a sentence under this section applies, a defendant must be notified of the minimum mandatory sentence. The elements of an offense under this section are the elements of an offense for a violation of section 39-08-01 and the additional elements that create an offense in each subsection of this section. Whether an individual caused death or substantial or serious bodily injury must be determined in accordance with section 12.1-02-05.

Source:

S.L. 1983, ch. 415, § 22; 1987, ch. 460, § 8; 2009, ch. 335, § 2; 2013, ch. 301, § 8; 2017, ch. 268, § 3, effective August 1, 2017.

Cross-References.

Mandatory revocation of license, see § 39-06-31.

Notes to Decisions

Evidence Sufficient.

District court did not err in denying defendant's motion for acquittal because a rational fact finder could have found defendant guilty of criminal vehicular injury; the State submitted evidence showing that defendant was driving under the influence, and the victim and two doctors testified about the victim's injuries. State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435, 2015 N.D. LEXIS 242 (N.D. 2015).

Sentence.

District court did not err by imposing the mandatory minimum one-year prison sentence because there was sufficient evidence to support the verdict; the district court indicated it had considered the discretionary sentencing factors, and defendant received the mandatory minimum sentence required by the criminal vehicular injury statute. State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435, 2015 N.D. LEXIS 242 (N.D. 2015).

Serious Bodily Injury.

N.D.C.C. § 39-08-01.2(2) is not unconstitutionally vague because the legislature has defined “substantial bodily injury” and “serious bodily injury”; the phrases and their definitions are understandable to a reasonable person and provide adequate warning of the conduct prohibited under the criminal vehicular injury statute. State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435, 2015 N.D. LEXIS 242 (N.D. 2015).

Although the N.D.C.C. § 12.1-01-04 definition of “serious bodily injury” was removed from N.D.C.C. § 39-08-01.2(2), the legislative history does not plainly indicate the intent was to prohibit the use of that definition; removing the § 12.1-01-04 definition of “serious bodily injury” from § 39-08-01.2(2) allows a court or jury to look to other accepted definitions of “serious bodily injury” in addition to the § 12.1-01-04 definition. State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435, 2015 N.D. LEXIS 242 (N.D. 2015).

Legislative history's silence on the removal of the N.D.C.C. § 12.1-01-04 definition of “serious bodily injury” from N.D.C.C. § 39-08-01.2(2) is indicative of an intent that the criminal vehicular statute not be exclusively limited to the definition of “serious bodily injury” under § 12.1-01-04; in other words, the modification broadened what the district court could consider in defining the phrase, rather than prohibit the use of the statutory definition under § 12.1-01-04. State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435, 2015 N.D. LEXIS 242 (N.D. 2015).

District court did not err in using the definitions of “serious bodily injury” and “substantial bodily injury” from N.D.C.C. § 12.1-01-04 in addressing defendant's constitutional arguments in his motions to dismiss; given the established definitions of “serious bodily injury” and “substantial bodily injury,” along with other courts' holdings regarding the phrases, § 39-08-01.2(2) is not unconstitutionally vague. State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435, 2015 N.D. LEXIS 242 (N.D. 2015).

Strict Liability.

Because N.D.C.C. § 39-08-01.2(2) does not specify a culpability requirement, it is a strict liability offense, and the willful culpability requirement of N.D.C.C. § 12.1-02-02(2) does not apply. State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435, 2015 N.D. LEXIS 242 (N.D. 2015).

District court was not obligated to instruct the jury on culpability because it was a nonessential element of the strict liability offense of criminal vehicular injury. State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435, 2015 N.D. LEXIS 242 (N.D. 2015).

Sufficiency of Information.

District court did not err in failing to dismiss an information because defendant had proper notice of the pending charges against him allowing him to prepare a defense; the information tracked the language of N.D.C.C. § 39-08-01.2(2) by alleging that defendant drove under the influence of alcohol in violation of N.D.C.C. § 39-08-01 and caused substantial or serious bodily injury to another State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435, 2015 N.D. LEXIS 242 (N.D. 2015).

Decisions under Prior Law

Invalid Sentencing Scheme.

With respect to class B misdemeanor offenses under N.D.C.C. § 39-08-01(2), the enhanced sentencing language under N.D.C.C. § 39-08-01.2(2) (a conviction for driving under the influence of alcohol which results in serious bodily injury to another), requiring at least 90 days incarceration, conflicts with the maximum penalty of 30 days allowed under N.D.C.C. § 12.1-32-01(6) and is invalid and unenforceable. State v. Smith, 697 N.W.2d 368, 2005 ND App 5, 2005 N.D. App. LEXIS 2 (N.D. Ct. App. 2005).

Special Interrogatory Rejected.

Trial court properly rejected the special interrogatory proposed by the prosecutor asking whether a finding of guilty was based in part on the fact that the defendant was driving under the influence of alcohol, because special verdicts and interrogatories in criminal cases are disfavored and this section provides no guidance as to whether a judge or a jury is to decide whether a conviction is based in part on evidence of a person driving while under the influence of alcohol. State v. Steen, 2000 ND 152, 615 N.W.2d 555, 2000 N.D. LEXIS 162 (N.D. 2000).

Collateral References.

Vehicular accident, passengers’ liability to vehicular victim for harm caused by intoxicated motor vehicle driver, 64 A.L.R.4th 272.

39-08-01.3. Alcohol-related traffic offenses — Seizure, forfeiture, and sale of motor vehicles.

A motor vehicle owned and operated by an individual upon a highway or upon public or private areas to which the public has a right of access for vehicular use may be seized, forfeited, and sold or otherwise disposed of pursuant to an order of the court at the time of sentencing if the individual is in violation of section 39-08-01, 39-08-01.2, or 39-08-01.4, or an equivalent ordinance and has been convicted of violating section 39-08-01 or an equivalent ordinance at least one other time within the seven years preceding the violation.

Source:

S.L. 1989, ch. 466, § 1; 1999, ch. 346, § 2; 2013, ch. 301, § 9.

Collateral References.

Validity, construction, and application of ignition interlock laws, 15 A.L.R.6th 375.

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

39-08-01.4. Driving while under the influence of alcohol while being accompanied by a minor — Penalty.

It is a class A misdemeanor for an individual who is at least twenty-one years of age to violate section 39-08-01 if the violation occurred while a minor was accompanying the individual in a motor vehicle. If an individual has a previous conviction for a violation of section 39-08-01.4, a violation of this section is a class C felony. An individual convicted under this section must be sentenced in accordance with subsection 5 of section 39-08-01.

Source:

S.L. 1995, ch. 378, § 1; 2013, ch. 301, § 10; 2015, ch. 267, § 2, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 2 of chapter 267, S.L. 2015 became effective August 1, 2015.

39-08-01.5. Partial suspension of sentence for drug court program or veterans treatment docket completion.

  1. Notwithstanding section 39-08-01, all but ten days of the minimum mandatory sentence required for a defendant charged with a third or subsequent violation of section 39-08-01 may be suspended on the condition the defendant successfully completes a drug court program or veterans treatment docket approved by the supreme court.
  2. Upon successful completion of a drug court program or veterans treatment docket, a defendant convicted of a felony under section 39-08-01 and sentenced to drug court or veterans treatment docket is deemed to have been convicted of a misdemeanor.
  3. If a defendant convicted of a misdemeanor under section 39-08-01 is sentenced to drug court or veterans treatment docket and successfully completes a drug court program or veterans treatment docket, the court shall dismiss the case and seal the file in accordance with section 12.1-32-07.2.

History. S.L. 2015, ch. 268, § 7, effective April 15, 2015; 2019, ch. 188, § 3, effective August 1, 2019; 2021, ch. 110, § 3, effective August 1, 2021.

Effective Date.

This section became effective April 15, 2015, pursuant to an emergency clause in section 15 of chapter 268, S.L. 2015.

39-08-01.6. Criminal record — Seal — Exception.

  1. The court shall seal an individual’s criminal record in accordance with sections 12.1-32-07.1 and 12.1-32-07.2 which relates to a conviction under section 39-08-01, if the individual:
    1. Has pled guilty or nolo contendere to, or has been found guilty of a violation under section 39-08-01; or an equivalent ordinance; and
    2. Has not pled guilty or nolo contendere to, or has not been found guilty of a subsequent violation of section 39-08-01, or any other criminal offense, within seven years of the first violation under section 39-08-01 or an equivalent ordinance, or.
  2. This section does not apply to an individual licensed as a commercial driver under section 39-06.2-10 or to a prosecutor’s access to a prior offense for purposes of enhancement under subsection 3 of section 39-08-01 or an equivalent ordinance.

Source:

S.L. 2019, ch. 323, § 1, effective August 1, 2019; 2021, ch. 293, § 1, effective August 1, 2021.

Note.

Section 39-08-01.6 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 293, Session Laws 2021, House Bill 1336; and Section 1 of Chapter 294, Session Laws 2021, House Bill 1355.

39-08-02. Person conveying passengers not to engage drivers addicted to intoxicants — Penalty.

No person owning or having the direction or control of any vehicle for the conveyance of passengers in this state may employ or continue in the person’s employment as a driver of such vehicle any person who is known to the actor to be addicted to a controlled substance or given to the excessive use of controlled substances or intoxicating liquors. Any person violating the provisions of this section is guilty of an infraction and is liable for all damages sustained by reason of such violation.

Source:

Pol. C. 1877, ch. 29, § 51; R.C. 1895, § 1157; R.C. 1899, § 1157; R.C. 1905, § 1461; C.L. 1913, § 2053; R.C. 1943, § 39-0802; S.L. 1975, ch. 106, § 435.

Collateral References.

Vehicular accident, passengers’ liability to vehicular victim for harm caused by intoxicated motor vehicle driver, 64 A.L.R.4th 272.

Sufficiency of showing of physical inability to take tests for driving while intoxicated to justify refusal, 68 A.L.R.4th 776.

Law Reviews.

The Drunken Driver and Punitive Damages: A Survey of the Case Law and the Feasibility of a Punitive Damage Award in North Dakota, 59 N.D. L. Rev. 391 (1983).

39-08-03. Reckless driving — Aggravated reckless driving — Penalty.

Any person is guilty of reckless driving if the person drives a vehicle:

  1. Recklessly in disregard of the rights or safety of others; or
  2. Without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or the property of another.

Except as otherwise herein provided, any person violating the provisions of this section is guilty of a class B misdemeanor. Any person who, by reason of reckless driving as herein defined, causes and inflicts injury upon the person of another, is guilty of aggravated reckless driving, and is guilty of a class A misdemeanor.

Source:

S.L. 1927, ch. 162, §§ 3, 63; R.C. 1943, § 39-0803; S.L. 1949, ch. 251, § 1; 1957 Supp., § 39-0803; S.L. 1959, ch. 289, § 10; 1975, ch. 349, § 5.

Cross-References.

Applicability on highways and elsewhere, see §§ 39-10-01, 39-09-01.1.

Care required in operation of vehicle, see § 39-09-01, 39-09-01.1.

Notes to Decisions

Aggravated Reckless Driving.

In a case in which defendant pled guilty to leaving the scene of an accident involving injury and aggravated reckless driving, defendant’s sentence was vacated and the case was remanded for resentencing as the district court substantially relied upon an impermissible factor in sentencing defendant to jail because the case did not implicate an offense involving domestic violence, sexual offender registration, or mandatory terms of incarceration; defendant was not charged with, nor did he plead guilty to, any offense involving a dangerous weapon; and the dangerous weapon exception to the presumptive probation statute did not apply in defendant’s case. State v. Christensen, 2019 ND 11, 921 N.W.2d 436, 2019 N.D. LEXIS 18 (N.D. 2019).

—Proof.

To prove aggravated reckless driving, the state must prove that defendant was guilty of reckless driving as defined in either subsection of this section, and then further prove that such reckless driving caused the injury of another person. State v. Kreiger, 138 N.W.2d 597, 1965 N.D. LEXIS 109 (N.D. 1965).

Circumstantial Evidence.

Violation of this section may be established by circumstantial evidence. State v. Rieger, 281 N.W.2d 252, 1979 N.D. LEXIS 261 (N.D. 1979).

Evidence.

Beer cans found in vehicle driven by defendant were admissible. State v. Loyland, 149 N.W.2d 713, 1967 N.D. LEXIS 143 (N.D. 1967).

Evidence that defendant was driving east in the westbound lane of travel at the time of the collision with the other vehicle, was swerving back and forth on the roadway while driving in front of the other vehicle, and swerved so as to force the other vehicle off the road when it attempted to pass him was sufficient to support defendant’s conviction for reckless driving. State v. Hartleib, 335 N.W.2d 795, 1983 N.D. LEXIS 316 (N.D. 1983).

Evidence was sufficient to convict driver of tractor/trailer of aggravated reckless driving for colliding with partially disabled vehicle where testimony at trial revealed that the driver of the disabled vehicle was more than halfway onto the shoulder of the road, and an investigation revealed that the tractor/trailer left no skid marks, tending to show the driver took no evasive actions; in addition, the state offered the testimony of an accident reconstruction specialist who concluded that from the time the tractor/trailer crested the hill where he could see the vehicle, until the point of impact, took approximately 51 seconds. State v. Syring, 524 N.W.2d 97, 1994 N.D. LEXIS 244 (N.D. 1994).

Evidence defendant was the only occupant of the vehicle, skid marks on the road started before the stop sign and went across the road where the car went into a slough, that the vehicle came to rest approximately 150 yards from the road. a fence was demolished, speed was a factor in the crash, and defendant acknowledged that he drank approximately 10 to 12 beer was sufficient to convict defendant of reckless driving. State v. Vanberkom, 2018 ND 167, 913 N.W.2d 764, 2018 N.D. LEXIS 171 (N.D. 2018).

Sufficient evidence supported a juvenile’s reckless driving conviction because the evidence showed the juvenile (1) ran three stop signs, (2) refused to stop after an officer turned on the officer’s overhead lights, and (3) drove at approximately 65 miles per hour in a residential area. K.V. v. A.V., 2019 ND 255, 934 N.W.2d 879, 2019 N.D. LEXIS 259 (N.D. 2019).

Eyewitness Testimony As to Speed.

Complete accuracy in computing distances and speeds is not a prerequisite to receipt of testimony on those matters in a reckless driving prosecution; weight to be given such testimony is for jury to ascertain. State v. Loyland, 149 N.W.2d 713, 1967 N.D. LEXIS 143 (N.D. 1967).

Federal Sentencing.

District court did not commit a procedural error in its calculation of defendant’s United State’s Sentencing Guidelines range because neither defendant’s 2003 nor 2006 conviction for “reckless driving” under N.D.C.C. § 39-08-03 was countable under U.S. Sentencing Guidelines Manual § 4A1.2(c)(1) as they both resulted in a sentence below the threshold required by § 4A1.2(b)(2), and they were not similar to a countable offense. United States v. Tomac, 567 F.3d 383, 2009 U.S. App. LEXIS 10653 (8th Cir. N.D. 2009).

Recklessness of Other Driver.

The driver of one of two colliding automobiles may be guilty of reckless driving, even if the driver of the other car is likewise guilty thereof. State v. Sullivan, 58 N.D. 732, 227 N.W. 230, 1929 N.D. LEXIS 276 (N.D. 1929).

Recklessness of one motorist will not excuse recklessness of another in prosecution of one for reckless driving. State v. Loyland, 149 N.W.2d 713, 1967 N.D. LEXIS 143 (N.D. 1967).

Collateral References.

Application of “assured clear distance ahead” or “radius of lights” doctrine to accident involving pedestrian crossing street or highway, 31 A.L.R.2d 1424.

Meaning of “residence district”, “business district”, “school area”, and the like, in statutes and ordinances regulating speed of motor vehicle, 50 A.L.R.2d 343.

Reckless driving within statute making reckless driving of automobile a criminal offense, what amounts to, 52 A.L.R.2d 1337.

Statute prohibiting reckless driving: Definiteness and certainty, 52 A.L.R.4th 1161.

Law Reviews.

Reckless Driving — Is It a Distinguishable Offense? 41 J. Crim. L. 788 (1951).

39-08-03.1. Exhibition driving and drag racing — Definitions — Penalty.

  1. No person may engage in exhibition driving of any vehicle on a highway, street, alley, sidewalk, or any public or private parking lot or area, nor may any person engage in a race, a speed competition, drag race or acceleration contest, test of physical endurance, or exhibition of speed or acceleration. Any person who violates this section by engaging in an act defined by subdivision b of subsection 2 must be assessed a fee of fifty dollars. Any person who violates this section by engaging in an act defined by subdivision a or c of subsection 2 must be assessed a fee of one hundred dollars.
  2. As used in this section:
    1. “Drag race” means the operation of two or more vehicles from a point side by side by accelerating rapidly in a competitive attempt to cause one vehicle to outdistance the other; or the operation of one or more vehicles over a common selected course from the same point to the same point for the purpose of comparing the relative speed or powers of acceleration of such vehicle or vehicles within a certain distance or time limit.
    2. “Exhibition driving” means driving a vehicle in a manner which disturbs the peace by creating or causing unnecessary engine noise, tire squeal, skid, or slide upon acceleration or braking; or driving and executing or attempting one or a series of unnecessarily abrupt turns.
    3. “Race” means the use of one or more vehicles in an attempt to outgain, outdistance, or to arrive at a given distance ahead of another vehicle or vehicles; or the use of one or more vehicles to willfully prevent another vehicle from passing the racing vehicle or vehicles, or to test the physical stamina or endurance of the persons driving the vehicles over a long-distance driving route.
  3. Nothing in this section shall be construed as prohibiting drag racing, exhibition driving, or similar events when carried out in an organized manner on a track or other privately owned area specifically set aside and used solely for such purposes by drivers of motor vehicles, including snowmobiles.

Source:

S.L. 1975, ch. 339, § 18; 1981, ch. 392, § 3; 1987, ch. 471, § 1.

Notes to Decisions

Excessive Engine Noise.

A driver can violate the law if the peace of only one person is disturbed by excessive engine noise. Wolf v. North Dakota Dep't of Transp., 523 N.W.2d 545, 1994 N.D. LEXIS 229 (N.D. 1994).

Rural Areas.

This section does not confine the violation to a residential vicinity. Wolf v. North Dakota Dep't of Transp., 523 N.W.2d 545, 1994 N.D. LEXIS 229 (N.D. 1994).

39-08-04. Accidents involving death or personal injuries — Penalty.

  1. The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop or return with the vehicle as close as possible to the scene of the accident and in every event shall remain at the scene of the accident until that driver has fulfilled the requirements of section 39-08-06. Every stop required by this section must be made without obstructing traffic more than is necessary.
  2. Any person failing to comply with the requirements of this section under circumstances involving personal injury is guilty of a class A misdemeanor. Any person negligently failing to comply with the requirements of this section under circumstances involving serious personal injury is guilty of a class C felony. Any person negligently failing to comply with the requirements of this section under circumstances involving death is guilty of a class B felony.
  3. The director shall revoke the license or permit to drive or nonresident operating privilege of a person convicted under this section.

Source:

S.L. 1955, ch. 253, § 1; R.C. 1943, 1957 Supp., § 39-0804; S.L. 1975, ch. 106, § 436; 1995, ch. 379, § 1; 2001, ch. 348, § 1.

Notes to Decisions

Jury Instructions.

In a case involving leaving the scene of an accident involving death under N.D.C.C. § 39-08-04, the jury instructions given regarding negligence adequately informed the jury of the applicable law so there was no obvious error where defendant failed to object; defendant’s request for an instruction regarding knowledge was consistent with Illinois law, which was not persuasive in North Dakota since the level of culpability was different. State v. Jacob, 2006 ND 246, 724 N.W.2d 118, 2006 N.D. LEXIS 253 (N.D. 2006).

Leaving the Scene.

There is no evidence that this conduct of leaving the scene is to be used to prove any of the elements of manslaughter. State v. Robideaux, 475 N.W.2d 915, 1991 N.D. LEXIS 173 (N.D. 1991).

In a case in which defendant pled guilty to leaving the scene of an accident involving injury and aggravated reckless driving, defendant’s sentence was vacated and the case was remanded for resentencing as the district court substantially relied upon an impermissible factor in sentencing defendant to jail because the case did not implicate an offense involving domestic violence, sexual offender registration, or mandatory terms of incarceration; defendant was not charged with, nor did he plead guilty to, any offense involving a dangerous weapon; and the dangerous weapon exception to the presumptive probation statute did not apply in defendant’s case. State v. Christensen, 2019 ND 11, 921 N.W.2d 436, 2019 N.D. LEXIS 18 (N.D. 2019).

Negligence Standard.

In a case involving leaving the scene of an accident involving death under N.D.C.C. § 39-08-04, a motion for an acquittal under N.D.R.Crim.P. 29 was properly denied because an argument that defendant was not aware he had hit someone did not apply the negligence culpability standard under N.D.C.C. § 12.1-02-02; based on the age of a truck and problems that it was having, defendant should have at least gotten out and checked after he felt a bump while backing out of a parking lot near a bar. A witnesses’ testimony regarding the amount of time defendant spent around his truck made the jury’s conclusion that defendant acted negligently by leaving the scene even more reasonable because it seemed more likely he would have known a drunk man was in the vicinity and could have been the source of the bump, even if he did not think the man was behind the truck when he backed up. State v. Jacob, 2006 ND 246, 724 N.W.2d 118, 2006 N.D. LEXIS 253 (N.D. 2006).

Verdicts Consistent.

Acquittals for murder and negligent homicide were not inconsistent with a conviction for leaving the scene of an accident causing death because the jury could have found that defendant did not negligently cause death, but negligently left the scene when he failed to get out and see what a bump was when he left the parking lot across from a bar. State v. Jacob, 2006 ND 246, 724 N.W.2d 118, 2006 N.D. LEXIS 253 (N.D. 2006).

Collateral References.

Failure to comply with statute requiring one involved in automobile accident to stop or report as affecting question as to suspension or tolling statute of limitation, 10 A.L.R.2d 564.

Acquittal of driver of hit-and-run driving as a bar to prosecution of one other than driver, 62 A.L.R.2d 1130, 1131.

Applicability of criminal “hit-and-run” statute to accidents occurring on private property, 77 A.L.R.2d 1171.

Violation of statute requiring one involved in an accident to stop and render aid as affecting civil liability, 80 A.L.R.2d 299.

Necessity and sufficiency of showing in a criminal prosecution under a “hit-and-run” statute accused’s knowledge of accident, injury or damage, 23 A.L.R.3d 497; 26 A.L.R.5th 1.

Construction and application of “amnesty” provision whereby automobile driver leaving scene of accident may report to police within stated time without risk of use of his report against him, 36 A.L.R.4th 907.

Fact that passenger in negligently operated motor vehicle is owner as affecting passenger’s liability to or rights against third person—modern cases, 37 A.L.R.4th 565.

Sufficiency of showing of driver’s involvement in motor vehicle accident to support prosecution for failure to stop, furnish identification, or render aid, 82 A.L.R.4th 232.

Establishment of negligence within meaning of statute penalizing negligent homicide by operation of motor vehicle — Speeding or driving at unsafe speed, 84 A.L.R.6th 427.

39-08-04.1. Emergency care or services rendered — Liability.

Any person who is an unpaid volunteer, who in good faith, renders emergency care or services at or near the scene of an accident, disaster, or other emergency, or en route to a treatment facility, is not liable to the recipient of the emergency care or services for any damages resulting from the rendering of that care or services.

This section does not relieve a person from liability for damages resulting from the intoxication, willful misconduct, or gross negligence of the person rendering the emergency care or services. Further, liability is not relieved if the emergency care was rendered for remuneration or with the expectation of remuneration.

Source:

S.L. 1971, ch. 372, § 1; 1981, ch. 396, § 1; 1987, ch. 310, § 2.

Cross-References.

Emergency treatment by ambulance service personnel, see § 23-27-04.1.

Emergency treatment by firemen, policemen, or peace officers, see § 32-03-40.

Collateral References.

Construction and application of “Good Samaritan” statutes, 68 A.L.R.4th 294.

Liability for negligence of ambulance attendants, emergency medical technicians, and the like, rendering emergency medical care outside hospital, 16 A.L.R.5th 605.

Law Reviews.

For Case Comment: Health – Medical Malpractice Defenses: Applying Good Samaritan Laws to In-Hospital Emergencies (Chamley v. Khokha, 2007 ND 69, 730 N.W.2d 864), see 84 N.D. L. Rev. 535 (2008).

39-08-05. Crashes involving damage to vehicle — Penalty.

The driver of any vehicle involved in a crash resulting only in property damage to the driver’s vehicle or any other vehicle shall immediately stop the vehicle at the scene of the crash or as close to the scene of the crash as possible but shall return to and remain at the scene of the crash until the driver has fulfilled the requirements of section 39-08-06 and 39-08-09. Every such stop must be made without obstructing traffic more than is necessary. Any person failing to stop or comply with the requirements in this section is guilty of a class B misdemeanor.

Source:

S.L. 1955, ch. 253, § 2; R.C. 1943, 1957 Supp., § 39-0805; S.L. 1975, ch. 106, § 437; 2021, ch. 295, § 1, effective July 1, 2021.

Collateral References.

Construction and application of “amnesty” provision whereby automobile driver leaving scene of accident may report to police within stated time without risk of use of his report against him, 36 A.L.R.4th 907.

Fact that passenger in negligently operated motor vehicle is owner as affecting passenger’s liability to or rights against third person—modern cases, 37 A.L.R.4th 565.

39-08-06. Duty to give information and render aid.

The driver of any vehicle involved in an accident resulting in injury to or the death of any person or damage to any vehicle which is driven or attended by any person shall give the driver’s name and address, and the name of the motor vehicle insurance policy carrier of the driver and owner, as well as the registration number, of the vehicle. Upon request, and if available, the driver of any vehicle involved in the accident shall exhibit the driver’s operator’s or chauffeur’s license to the person struck or the driver or occupant of or person attending any other vehicle involved in the accident and shall render to any person injured in the accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of the person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that treatment is necessary or if the carrying is requested by the injured person.

Source:

S.L. 1955, ch. 253, § 3; R.C. 1943, 1957 Supp., § 39-0806; S.L. 1979, ch. 421, § 1.

Notes to Decisions

Failure to Admit Operation of Vehicle.

Evidence was sufficient to support a conviction under this section and there was no obvious error affecting substantial rights under N.D.R.Crim.P. 52(b), where circumstantial evidence established that the defendant was the driver of the vehicle which struck and killed the victim, yet, at the scene of the accident, defendant did not acknowledge that he was the driver of the vehicle and in fact denied driving the vehicle. State v. Steen, 2000 ND 152, 615 N.W.2d 555, 2000 N.D. LEXIS 162 (N.D. 2000).

Gross Negligence.

A law enforcement officer has the statutory authority to pursue a person who flees from an arrest, but in conducting that pursuit the officer and his employer will be held accountable, and be subject to liability, for damages incurred as a result of the pursuit if the officer’s conduct constitutes gross negligence. Jones v. Ahlberg, 489 N.W.2d 576, 1992 N.D. LEXIS 158 (N.D. 1992).

Leaving the Scene.

There is no evidence that this conduct of leaving the scene is to be used to prove any of the elements of manslaughter. State v. Robideaux, 475 N.W.2d 915, 1991 N.D. LEXIS 173 (N.D. 1991).

Trains.

This section does not pertain to trains and imposes no duty upon the engineer of a train. South v. National R.R. Passenger Corp., 290 N.W.2d 819, 1980 N.D. LEXIS 197 (N.D. 1980).

Collateral References.

Construction and application of “amnesty” provision whereby automobile driver leaving scene of accident may report to police within stated time without risk of use of his report against him, 36 A.L.R.4th 907.

Fact that passenger in negligently operated motor vehicle is owner as affecting passenger’s liability to or rights against third person—modern cases, 37 A.L.R.4th 565.

Sufficiency of showing of driver’s involvement in motor vehicle accident to support prosecution for failure to stop, furnish identification, or render aid, 82 A.L.R.4th 232.

Law Reviews.

North Dakota Supreme Court Review, 77 N.D. L. Rev. 589 (2001).

39-08-07. Duty upon striking unattended vehicle — Penalty.

The driver of any vehicle which collides with any vehicle which is unattended shall immediately stop and shall then and there either locate and notify the operator or owner of the vehicle of the name and address, as well as the name of the motor vehicle insurance policy carrier, of the driver and owner of the vehicle striking the unattended vehicle or shall leave in a conspicuous place in the vehicle struck a written notice giving the name and address, as well as the name of the motor vehicle insurance policy carrier, of the driver and of the owner of the vehicle doing the striking and a statement of the circumstances of the collision. Any person violating this section is guilty of a class A misdemeanor.

Source:

S.L. 1955, ch. 253, § 4; R.C. 1943, 1957 Supp., § 39-0807; S.L. 1975, ch. 339, § 19; 1979, ch. 421, § 2.

Notes to Decisions

Lack of Mental or Physical Ability to Perform Act.

Although this section is a strict liability offense, one cannot be found guilty of failing to conform to statutory requirement where he or she is unconscious or lacks mental or physical ability to perform prohibited act; while state is not required to prove consciousness as an element and trial court is not required to give a conscious-action type instruction in every strict liability case, a trial judge may give such instruction where presented with evidence of unconsciousness and a proper request for such instruction is made. State v. Olson, 356 N.W.2d 110, 1984 N.D. LEXIS 389 (N.D. 1984).

Although this section is a strict liability statute, one cannot be guilty of failing to conform to the statutory requirement where he or she is unconscious or lacks the mental or physical ability to perform the required act. State v. Nygaard, 447 N.W.2d 267, 1989 N.D. LEXIS 197 (N.D. 1989).

Negligence.

Since, as this section is a strict liability offense, negligence or recklessness is more than sufficient to establish culpability, driver who was at least negligent in not stopping to determine whether or not she had in fact struck another vehicle was not entitled to the defense of excuse based on lack of knowledge. State v. Nygaard, 447 N.W.2d 267, 1989 N.D. LEXIS 197 (N.D. 1989).

Strict Liability Offense.

This section is a strict liability offense, punishable without regard to intent, knowledge, willfulness, or negligence. State v. Olson, 356 N.W.2d 110, 1984 N.D. LEXIS 389 (N.D. 1984).

This section, which includes no culpability requirement, is a strict liability offense, punishable without regard to intent, knowledge, willfulness, or negligence. State v. Nygaard, 447 N.W.2d 267, 1989 N.D. LEXIS 197 (N.D. 1989).

Collateral References.

Construction and application of “amnesty” provision whereby automobile driver leaving scene of accident may report to police within stated time without risk of use of his report against him, 36 A.L.R.4th 907.

Necessity and sufficiency of showing, in criminal prosecution under “hit and run” statute, accused’s knowledge of accident, injury, or damage, 26 A.L.R.5th 1.

39-08-08. Duty upon striking highway fixtures or other property.

The driver of any vehicle involved in a crash resulting only in damage to highway fixtures or other property shall take reasonable steps to locate and notify the owner or person in charge of the property of the damage. The driver shall provide the driver’s name, address, and registration number of the vehicle the driver is driving and shall upon request and if available exhibit the driver’s, operator’s, or chauffeur’s license. The driver shall make report of the crash when and as required in section 39-08-09. The driver shall provide the name of the motor vehicle insurance policy carrier and the policy number of the driver, or if the driver is not the owner of the vehicle, then the motor vehicle insurance policy carrier and the policy number of the owner of the vehicle, to the owner or person in charge of the damaged property or to the law enforcement officer investigating the crash.

Source:

S.L. 1955, ch. 253, § 5; R.C. 1943, 1957 Supp., § 39-0808; S.L. 1975, ch. 349, § 6; 2021, ch. 295, § 2, effective July 1, 2021.

Collateral References.

Construction and application of “amnesty” provision whereby automobile driver leaving scene of accident may report to police within stated time without risk of use of his report against him, 36 A.L.R.4th 907.

39-08-09. Immediate notice of accident — Penalty.

  1. The driver of a vehicle involved in an accident resulting in injury to or death of any individual, or property damage to an apparent extent of at least four thousand dollars, shall immediately give notice of the accident to the local police department if the accident occurs within a municipality, otherwise to the office of the county sheriff or the state highway patrol. A driver who violates this section must be assessed a fine of fifty dollars. The name of the motor vehicle insurance policy carrier and the policy number of the driver, or if the driver is not the owner of the vehicle, then the motor vehicle insurance policy carrier and the policy number of the owner of the vehicle, must be furnished to the law enforcement officer investigating the accident. If the driver does not have the required information concerning insurance to furnish to the investigating law enforcement officer, then within five days of the accident the driver shall supply that information to the driver’s license division in the form the division requires.
  2. The director may suspend the license or permit to drive and any nonresident operating privileges of any person failing to comply with the duties as provided in sections 39-08-06 through 39-08-09 until those duties have been fulfilled, and the director may extend the suspension not to exceed thirty days.
  3. The driver of a vehicle involved in an accident with an undomesticated animal resulting in property damage only to the driver’s vehicle is exempt from the notice requirements of this section, regardless of the amount of damage to the driver’s vehicle.

Source:

S.L. 1955, ch. 253, § 6; 1957, ch. 262, § 1; R.C. 1943, 1957 Supp., § 39-0809; S.L. 1965, ch. 273, § 1; 1971, ch. 373, § 1; 1975, ch. 345, § 1; 1979, ch. 405, § 8; 1983, ch. 434, § 1; 1985, ch. 435, § 1; 1987, ch. 466, § 3; 2013, ch. 302, § 1; 2019, ch. 324, § 1, effective August 1, 2019.

Collateral References.

Construction and application of “amnesty” provision whereby automobile driver leaving scene of accident may report to police within stated time without risk of use of his report against him, 36 A.L.R.4th 907.

39-08-10. Officer to report.

Every law enforcement officer, who in the regular course of duty investigates a motor vehicle crash required to be reported as provided in section 39-08-09 either at the time and at the scene of the crash or thereafter by interviewing the participants, or witnesses, shall make and promptly forward to the director a report of the crash in the format prescribed by the director. The report must contain all the information required therein unless the information is not available, and must be transmitted electronically to the department of transportation using the software prescribed by the director.

Source:

S.L. 1955, ch. 253, § 7; 1957, ch. 262, § 2; R.C. 1943, 1957 Supp., § 39-0810; S.L. 1977, ch. 357, § 1; 1993, ch. 389, § 1; 2021, ch. 295, § 3, effective July 1, 2021.

Collateral References.

Discoverability of traffic accident reports and derivative information, 84 A.L.R.4th 15.

39-08-10.1. Investigating agency responsible to notify immediate family.

  1. In the event of serious injury to or death of any person, under circumstances leading to the notification of a law enforcement agency, the investigating law enforcement agency shall, upon positive identification of the person or persons involved, be responsible for immediately notifying the immediate family of the person or persons seriously injured or deceased, or making arrangements to have the immediate family notified by clergy or other suitable person.
  2. The investigating law enforcement agency may not release to the public the identity of the person or persons seriously injured or deceased until the first of the following events occurs:
    1. A member of the immediate family has been notified and given an opportunity to notify other immediate family members; or
    2. Twenty-four hours have elapsed from the time positive identification was made.
  3. For purposes of this section, “immediate family” means spouse, parent, child, sibling, or any person who regularly resides in the household of the seriously injured or deceased person.

Source:

S.L. 1979, ch. 422, § 1; 1997, ch. 138, § 4.

39-08-11. When driver unable to report.

  1. A crash notice is not required from any person who is physically incapable of making the report during the period of such incapacity.
  2. Whenever the driver of a vehicle is physically incapable of giving an immediate notice of a crash and there was another occupant in the vehicle at the time of the crash capable of doing so, the occupant shall make or cause to be given the notice not given by the driver.
  3. Whenever the driver is physically incapable of giving notice of a crash and the driver is not the owner of the vehicle, then the owner of the vehicle involved shall within five days after learning of the crash give the notice and insurance information not given by the driver.

Source:

S.L. 1955, ch. 253, § 8; 1957, ch. 362, § 3; R.C. 1943, 1957 Supp., § 39-0811; S.L. 1983, ch. 434, § 2; 2021, ch. 295, § 4, effective July 1, 2021.

Collateral References.

Construction and application of “amnesty” provision whereby automobile driver leaving scene of accident may report to police within stated time without risk of use of his report against him, 36 A.L.R.4th 907.

39-08-12. False reports. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

39-08-13. Crash report forms.

  1. The director shall prepare and supply to law enforcement agencies, garages, and other suitable agencies or individuals forms for crash reports required by law, appropriate with respect to the purposes to be served. The reports to be made by investigating officers shall call for sufficiently detailed information to disclose the cause of a traffic crash, conditions then existing, persons and vehicles involved, and whether the requirements for the deposit of security under section 39-16-05 are applicable.
  2. Every crash report required to be made to the director must be made in the format prescribed by the director and must contain all the information required therein unless not available.
  3. Every law enforcement officer who investigates a vehicle crash for which a report must be made as required in this chapter shall forward a report of such crash to the department within ten days after the crash.
  4. Except as provided in subsection 5, reports required to be forwarded by law enforcement officers and the information contained in the reports is not privileged or confidential. Crash reports held by a public entity other than the department of transportation and a law enforcement agency that contracts with service providers are exempt records. In addition, the following information contained in the report is an exempt record as defined in section 44-04-17.1 unless the requester is a party to the crash, a party’s legal representative, the insurer of any party to the crash, the agent of that insurer, or the legal representative or insurer of an individual involved in defending or investigating a prior or subsequent claim or crash involving a party to the crash:
    1. Driver identification number of a party in the report;
    2. Telephone number of a party in the report;
    3. Insurance company name and policy number of a party in the report; and
    4. Day and month of birth of a party in the report.
  5. Unless the requester is a party to the accident, a party’s legal representative, the insurer of any party to the accident, the agent of that insurer, or the legal representative or insurer of an individual involved in defending or investigating a prior or subsequent claim or accident involving a party to the accident, the following information contained in the report is exempt:
    1. The name of a minor party in the report;
    2. Driver identification number of a minor party in the report; and
    3. Telephone number uniquely owned by a minor party in the report.
  6. Upon request from a party to the crash, a party’s legal representative, the insurer of any party to the crash, the agent of the insurer, or the legal representative or insurer of an individual involved in defending or investigating a prior or subsequent claim or crash involving a party to the crash, and upon payment of a fee of up to seven dollars, the director shall release a completed copy of the crash report to the entity requesting the information. The request must be made on the form prescribed by the director.
  7. Upon request of any person and upon payment of a fee of up to seven dollars, the director may furnish to a requester a copy of an investigating officer’s crash report which does not contain any exempt information that may not be disclosed, if the report shows that the crash is one for which a driver is required to file a report under section 39-08-09.
  8. Copies of crash reports are not admissible as evidence in any action for damages or criminal proceedings arising out of a motor vehicle crash.
  9. The director, without a request under subsection 4, 5, or 6, may send a copy of a crash report to the registered owner of each vehicle involved as indicated by the report.

Source:

S.L. 1955, ch. 253, § 10; R.C. 1943, 1957 Supp., § 39-0813; S.L. 1967, ch. 308, § 1; 1979, ch. 187, § 80; 1983, ch. 435, § 1; 1985, ch. 435, § 2; 1993, ch. 389, § 2; 2003, ch. 312, § 7; 2005, ch. 334, § 1; 2005, ch. 377, § 2; 2009, ch. 336, § 1; 2013, ch. 303, §§ 1, 2; 2021, ch. 286, § 2, effective April 13, 2021; 2021, ch. 295, § 5, effective July 1, 2021; 2021, ch. 39, § 10, effective May 3, 2021.

Note.

Section 39-08-13 was amended 3 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 5 of Chapter 295, Session Laws 2021, House Bill 1098: and Section 2 of Chapter 286, Session Laws 2021, House Bill 1185; and Section 10 of Chapter 39, Session Laws 2021, Senate Bill 2011.

Section 10 of chapter 39, S.L. 2021, provides, “ REPEAL. Subdivision b of subsection 5 of section 39-08-13 of the North Dakota Century Code is repealed.”

39-08-14. Public inspection of reports relating to crashes.

  1. All crash reports made by persons involved in crashes or by garages shall be without prejudice to the individual so reporting and shall be for the confidential use of the department or other state agencies having use for the records for crash prevention purposes, or for the administration of the laws of this state relating to the deposit of security and proof of financial responsibility by persons driving or the owners of motor vehicles, except that the department may disclose the identity of a person involved in a crash when such identity is not otherwise known or when such person denies the person’s presence at such crash.
  2. All crash reports and supplemental information filed in connection with the administration of the laws of this state relating to the deposit of security or proof of financial responsibility are confidential and not open to general public inspection, nor may copying of lists of such reports be permitted.
  3. No written reports or written information mentioned in this section may be used as evidence in any trial, civil or criminal, arising out of a crash, except that the director shall furnish upon demand of any party to such trial, or upon demand of any court, a certificate showing that a specified crash report has or has not been made to the director in compliance with law.
  4. Notwithstanding any other provisions of this chapter, any information compiled or otherwise made available to the department pursuant to this chapter must be transmitted to each and every duly authorized official or agency of the United States requesting such.

Source:

S.L. 1955, ch. 253, § 12; 1957, ch. 262, § 4; R.C. 1943, 1957 Supp., § 39-0814; S.L. 1963, ch. 277, § 9; 1965, ch. 274, § 1; 1967, ch. 308, § 2; 2021, ch. 295, § 6, effective July 1, 2021.

Collateral References.

Admissibility of report of police or other public officer or employee, or portions of report, as to cause of or responsibility for accident, injury to person, or damage to property, 69 A.L.R.2d 1148.

39-08-15. Director of the department of transportation to tabulate and analyze crash reports.

The director shall tabulate and may analyze all crash reports and shall publish annually, or at more frequent intervals, statistical information based thereon as to the number and circumstances of traffic crashes.

Source:

S.L. 1955, ch. 253, § 13; R.C. 1943, 1957 Supp., § 39-0815; 2021, ch. 295, § 7, effective July 1, 2021.

39-08-16. Any incorporated city may require crash reports.

Any incorporated city or other municipality may by ordinance require that the driver of a vehicle involved in a crash shall file with a designated city department a report of such crash or a copy of any report herein required to be filed with the director. All such reports must be for the confidential use of the city department and subject to the provisions of section 39-08-14.

Source:

S.L. 1955, ch. 253, § 14; R.C. 1943, 1957 Supp., § 39-0816; S.L. 1963, ch. 277, § 10; 2021, ch. 295, § 8, effective July 1, 2021.

39-08-17. Magistrates to report convictions to highway commissioner. [Repealed]

Repealed by S.L. 1981, ch. 386, § 3.

39-08-18. Open container law — Penalty.

  1. A person may not drink or consume alcoholic beverages, as defined in section 5-01-01, in or on any motor vehicle when the vehicle is upon a public highway or in an area used principally for public parking. A person may not have in that person’s possession on that person’s person while in or on a private motor vehicle upon a public highway or in an area used principally for public parking, any bottle or receptacle containing alcoholic beverages which has been opened, or the seal broken, or the contents of which have been partially removed. It is unlawful for the owner of any private motor vehicle or the driver, if the owner be not then present in or on the motor vehicle, to keep or allow to be kept in a motor vehicle when such vehicle is upon the public highway or in an area used principally for public parking any bottle or receptacle containing such alcoholic beverages which has been opened, or the seal broken, or the contents of which have been partially removed except when such bottle or receptacle is kept in the trunk of the motor vehicle when such vehicle is equipped with a trunk, or kept in some other area of the vehicle not normally occupied by the driver or passengers, if the motor vehicle is not equipped with a trunk. A utility compartment or glove compartment must be deemed to be within the area occupied by the driver and passengers. This subsection does not prohibit the consumption or possession of alcoholic beverages in a house car if the consumption or possession occurs in the area of the house car used as sleeping or living quarters and that area is separated from the driving compartment by a solid partition, door, curtain, or some similar means of separation; however, consumption is not authorized while the house car is in motion. Any person violating this subsection must be assessed a fee of fifty dollars; however, the licensing authority may not record the violation against the person’s driving record unless the person was the driver of the motor vehicle at the time that the violation occurred.
  2. Subsection 1 does not apply to a public conveyance that has been commercially chartered for group use, any passenger for compensation in a for-hire motor vehicle, or a privately owned motor vehicle operated by a person in the course of that person’s usual employment transporting passengers at the employer’s direction. This subsection does not authorize possession or consumption of an alcoholic beverage by the operator of any motor vehicle described in this subsection while upon a public highway or in an area used principally for public parking.

Source:

S.L. 1947, ch. 10, §§ 1, 2; R.C. 1943, 1957 Supp., § 5-0124; S.L. 1965, ch. 275, § 1; 1967, ch. 309, § 1; 1973, ch. 301, § 24; 1979, ch. 423, § 1; 1985, ch. 110, § 2; 1989, ch. 467, § 1; 2005, ch. 340, § 4.

Notes to Decisions

Probable Cause.

Where officer observed defendant in a park standing beside his vehicle with what appeared to be a beer bottle on top of the vehicle and then after defendant had left the parking lot, found the open beer bottle partially full and still cold and fresh, and officer pursued defendant for violation of open container law, the officer had reasonable and articulable suspicion to justify investigative stop, even though he did not witness defendant holding the bottle in or on the car, as his belief that the violation occurred was reasonably inferable from what he observed at the park. State v. Smith, 452 N.W.2d 86, 1990 N.D. LEXIS 45 (N.D. 1990).

Following an investigatory stop, defendant’s continued seizure was not unreasonable where the deputy testified that upon approaching the vehicle he saw a rifle on the backseat and an open beer can, which was a violation of the open container law, N.D.C.C. § 39-08-18, the deputy noticed the odor of alcohol emanating from the vehicle, and defendant had bloodshot eyes and appeared to be nervous. Those observations were sufficient to create a reasonable suspicion that criminal activity was afoot and to justify expanding the scope of the stop. State v. Genre, 2006 ND 77, 712 N.W.2d 624, 2006 N.D. LEXIS 85 (N.D. 2006).

Collateral References.

Construction of statute or ordinance making it an offense to possess or have alcoholic beverages in opened package in motor vehicle, 35 A.L.R.3d 1418.

Validity and construction of statute or ordinance making it offense to have possession of open or unsealed alcoholic beverage in public place, 39 A.L.R.4th 668.

39-08-19. Penalty for harassment of domestic animals.

Any person operating a motorcycle, snowmobile, or other motor vehicle who willfully harasses or frightens any domestic animal, is, upon conviction, guilty of a class B misdemeanor. If injury or death results to the animal due to such action, such person is liable for the value of the animal and exemplary damages as provided in section 36-21-13.

Source:

S.L. 1973, ch. 303, § 1; 1975, ch. 106, § 438; 2005, ch. 340, § 5.

Collateral References.

Liability for killing or injuring, by motor vehicle, livestock or fowl upon highway, 55 A.L.R.4th 822.

39-08-20. Driving without liability insurance prohibited — Penalty.

  1. A person may not drive, or the owner may not cause or knowingly permit to be driven, a motor vehicle in this state without a valid policy of liability insurance in effect in order to respond in damages for liability arising out of the ownership, maintenance, or use of that motor vehicle in the amount required by chapter 39-16.1.
  2. Upon being stopped by a law enforcement officer for the purpose of enforcing or investigating the possible violation of an ordinance or state law, the person driving the motor vehicle shall provide to the officer upon request satisfactory evidence, including written or electronic proof of insurance, of the policy required under this section. If unable to comply with the request, that person may be charged with a violation of this section. If that person produces satisfactory evidence, including written or electronic proof of insurance, of a valid policy of liability insurance in effect at the time of the alleged violation of this section to the office of the prosecutor where the matter is pending, that person may not be found in violation of subsection 1.
  3. Notwithstanding section 26.1-30-18, a person may be in violation of subsection 1 for failure to have a valid policy of liability insurance in effect under this section if the time of acquisition of the policy was after the time of the alleged incidence of driving without liability insurance. If the time of acquisition of the policy comes into question, the driver or owner has the burden of establishing the time of acquisition. If the driver is not an owner of the motor vehicle, the driver does not violate this section if the driver provides the court with evidence identifying the owner of the motor vehicle and describing circumstances under which the owner caused or permitted the driver to drive the motor vehicle.
  4. For a second or subsequent violation of subsection 1 or equivalent ordinance, the court shall order the motor vehicle number plates of the motor vehicle owned and operated by the person at the time of the violation to be impounded until that person provides proof of insurance and a twenty dollar fee to the court. The person shall deliver the number plates to the court without delay at a time certain as ordered by the court. The court shall deliver the number plates to the office of the police officer that made the arrest and notify the department of the order. A person who does not provide the number plates to the court at the appropriate time is guilty of a class B misdemeanor.
  5. For a violation of subsection 1 or equivalent ordinance, the person shall provide proof of motor vehicle liability insurance to the department in the form of a written or electronically transmitted certificate from an insurance carrier authorized to do business in this state. This proof must be provided for a period of one year and kept on file with the department. If the person fails to provide this information, the department shall suspend that person’s driving privileges and may not issue or renew that person’s operator’s license unless that person provides proof of insurance.
  6. A person who has violated subsection 1 or equivalent ordinance shall surrender that person’s operator’s license and purchase a duplicate operator’s license with a notation requiring that person to keep proof of liability insurance on file with the department. The fee for this license is fifty dollars and the fee to remove this notation is fifty dollars.
  7. When an insurance carrier has certified a motor vehicle liability policy, the insurance carrier shall notify the director no later than ten days after cancellation or termination of the certified insurance policy by filing a notice of cancellation or termination of the certified insurance policy; except that a policy subsequently procured and certified shall, on the effective date of its certification, terminate the insurance previously certified with respect to any motor vehicle designated in both certificates.

Source:

S.L. 1975, ch. 340, § 2; 1981, ch. 391, § 3; 1985, ch. 430, § 3; 1989, ch. 468, § 1; 1991, ch. 413, § 2; 1993, ch. 390, § 1; 1995, ch. 377, § 2; 1999, ch. 342, § 3; 2003, ch. 266, § 7; 2003, ch. 324, § 1; 2007, ch. 271, § 2; 2007, ch. 328, § 1; 2013, ch. 294, § 3; 2013, ch. 296, § 7; 2015, ch. 263, § 2, effective August 1, 2015; 2015, ch. 269, § 1, effective August 1, 2015; 2021, ch. 296, § 1, effective August 1, 2021.

Effective Date.

The 2015 amendment of this section by section 2 of chapter 263, S.L. 2015 became effective August 1, 2015.

The 2015 amendment of this section by section 1 of chapter 269, S.L. 2015 became effective August 1, 2015.

Note.

Section 39-08-20 was amended 2 times by the 2015 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 269, Session Laws 2015, House Bill 1391 ; and Section 2 of Chapter 263, Session Laws 2015, Senate Bill 2211.

Cross-References.

Verification of liability insurance, see § 39-16.1-20.1.

Notes to Decisions

Constitutionality.

Requiring a motor vehicle operator to carry liability insurance is a reasonable regulation under a state’s police power and does not violate the operator’s constitutional rights. State v. Ertelt, 548 N.W.2d 775, 1996 N.D. LEXIS 151 (N.D. 1996).

Applicability.

Where a South Dakota insured with a South Dakota automobile liability policy was injured by his wife’s negligent driving in North Dakota, a broad grant of coverage in the policy’s out-of-state coverage clause replaced the policy’s coverage containing a household exclusion clause and gave coverage under North Dakota law which banned such exclusions; N.D.C.C. §§ 39-08-20, 39-16.1-10, 39-16.1-11 required a nonresident to provide insurance that conformed to the provisions of N.D.C.C. ch. 39-16.1. Schleuter v. N. Plains Ins. Co., 2009 ND 171, 772 N.W.2d 879, 2009 N.D. LEXIS 182 (N.D. 2009).

Appeals.

In a case in which defendant was found guilty of driving without liability insurance under N.D.C.C. § 39-08-20, the Supreme Court concluded that under N.D.C.C. § 39-06.1-03(5)(a), defendant could not appeal this noncriminal traffic offense to the Supreme Court. State v. Leppert, 2014 ND 207, 855 N.W.2d 665, 2014 N.D. LEXIS 208 (N.D. 2014).

DECISIONS UNDER PRIOR LAW

Notice.

The requirement of this section that all drivers have liability insurance did not put insureds on notice of underinsurance coverage at a time when underinsured motorist coverage was not required in North Dakota. Kippen v. Farm Bureau Mut. Ins. Co., 421 N.W.2d 483, 1988 N.D. LEXIS 77 (N.D. 1988).

Collateral References.

Automobile insurance: umbrella or catastrophe policy automobile liability coverage as affected by primary policy “other insurance” clause, 67 A.L.R.4th 14.

Law Reviews.

Insurance Coverage of Punitive Damages, 53 N.D. L. Rev. 239 (1976).

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

Article: Constitutional Roadkill in the Courts: Looking To the Legislature To Protect North Dakota Motorists Against Almost Unlimited Police Power To Stop and Investigate Crime, see 86 N.D. L. Rev. 1 (2010).

39-08-20.1. Uninsured motorist — Insurance deductible.

If a person causes damage to another or another’s property with a motor vehicle while in violation of section 39-08-20, at minimum the court shall order that person to pay to the other person the amount of the deductible on that person’s insurance.

Source:

S.L. 1999, ch. 347, § 1.

39-08-20.2. Special mobile equipment and liability insurance — Report — Penalty.

Special mobile equipment is not subject to the requirement of a motor vehicle liability policy under section 39-08-20. However, special mobile equipment must be covered under a liability policy. Failure to provide satisfactory evidence of liability coverage required under this section within ten days after a police officer has requested evidence of liability coverage is an infraction punishable solely by a fine of one hundred fifty dollars for a first violation and is an infraction punishable solely by a fine of three hundred dollars for a second or subsequent violation in three years. A municipal court or district court shall make a report of a violation of this section to the secretary of state for any special mobile equipment owned or operated by a contractor licensed under chapter 43-07.

History. S.L. 2015, ch. 270, § 1, effective April 16, 2015.

Effective Date.

This section became effective April 16, 2015, pursuant to an emergency clause in section 3 of chapter 270, S.L. 2015.

39-08-21. Medical qualifications exemption for intrastate drivers.

Notwithstanding the adoption by the superintendent of the state highway patrol of federal motor carrier safety regulations pursuant to subsection 3 of section 39-21-46, the provisions of 49 CFR 391.41(b)(1)-(11) do not apply to a person who is qualified through a state medical waiver program to operate a commercial motor vehicle within the boundaries of this state or a person who:

  1. Is otherwise qualified to operate a commercial motor vehicle and who possesses, on March 26, 1991, a class 1 license issued pursuant to section 39-06-14, as that section existed on June 30, 1989, or a class A license issued pursuant to chapter 39-06.2;
  2. Operates a commercial motor vehicle only within the boundaries of this state; and
  3. Has a medical or physical condition that:
    1. Would prevent such person from operating a commercial motor vehicle under federal motor carrier safety regulations contained in 49 CFR, chapter III, subchapter B;
    2. Existed on March 26, 1991, or at the time of the first required physical examination after that date; and
    3. An examining physician has determined has not substantially worsened since March 26, 1991, or the time of the first required physical examination after that date.

Source:

S.L. 1991, ch. 423, § 1; 1999, ch. 340, § 6; 1999, ch. 348, § 1; 2003, ch. 317, § 5.

39-08-22. Nonpayment for motor fuels — Penalty.

  1. For a theft offense in violation of chapter 12.1-23 which involves a person who leaves the premises of an establishment at which motor fuel is offered for retail sale after motor fuel was dispensed into the fuel tank of a motor vehicle that that person drove away without having made due payment or authorized charge for the motor fuel dispensed, the court may:
    1. Upon a person’s second conviction, order the suspension of the person’s driving privileges for up to three months; and
    2. Upon a person’s third or subsequent conviction, order the suspension of the person’s driving privileges for up to six months.
  2. As used in this section, “conviction” means a final conviction without regard to whether sentence was suspended or deferred or probation was granted after the conviction. Forfeiture of bail, bond, or collateral deposited to secure a defendant’s appearance in court, which forfeiture has not been vacated, is equivalent to conviction.

Source:

S.L. 2001, ch. 349, § 1.

39-08-23. Use of a wireless communications device prohibited.

  1. The operator of a motor vehicle that is part of traffic may not use a wireless communications device to compose, read, or send an electronic message.
  2. Under this section:
    1. “Electronic message” means a self-contained piece of digital communication that is designed or intended to be transmitted between physical devices. The term includes electronic mail, a text message, an instant message, a command or request to access a worldwide web page, or other data that uses a commonly recognized electronic communications protocol. The term does not include:
      1. Reading, selecting, or entering a telephone number, an extension number, or voice mail retrieval codes and commands into an electronic device for the purpose of initiating or receiving a telephone or cellular phone call or using voice commands to initiate or receive a telephone or cellular phone call;
      2. Inputting, selecting, or reading information on a global positioning system device or other navigation system device;
      3. Using a device capable of performing multiple functions, such as fleet management systems, dispatching devices, phones, citizen band radios, music players, or similar devices, for a purpose that is not otherwise prohibited;
      4. Voice or other data transmitted as a result of making a telephone or cellular phone call;
      5. Data transmitted automatically by a wireless communication device without direct initiation by an individual; or
      6. A wireless communications device used in a voice-activated, voice-operated, or any other hands-free manner.
    2. “Traffic” means operation of a motor vehicle while in motion or for the purposes of travel on any street or highway and includes a temporary stop or halt of motion, such as at an official traffic-control signal or sign. The term does not include a motor vehicle that is lawfully parked.
  3. This section does not apply if a wireless communications device is used for obtaining emergency assistance to report a traffic accident, medical emergency, or serious traffic hazard or to prevent a crime about to be committed, in the reasonable belief that an individual’s life or safety is in immediate danger, or in an authorized emergency vehicle while in the performance of official duties.

Source:

S.L. 2011, ch. 279, § 3; 2017, ch. 269, § 3, effective August 1, 2017.

Notes to Decisions

Traffic Stop Improper.

Reasonable suspicion to initiate the traffic stop did not exist because, although the officer observed defendant manipulating his cell phone for approximately two seconds, he could not see the content of the screen at the time of the tapping, and did not know if defendant’s phone-related activities were prohibited; and no testimony was elicited about the officer’s past success rate at identifying violations of the cell phone-use-while-driving law or any unique training he received enabling him to conclude the facts he observed amounted to violations of the law. State v. Morsette, 2019 ND 84, 924 N.W.2d 434, 2019 N.D. LEXIS 83 (N.D. 2019).

39-08-24. Use of an electronic communication device by minor prohibited.

An individual at least sixteen and under eighteen years of age who has been issued a class D license may not operate an electronic communication device to talk, compose, read, or send an electronic message while operating a motor vehicle that is in motion unless the sole purpose of operating the device is to obtain emergency assistance, to prevent a crime about to be committed, or in the reasonable belief that an individual’s life or safety is in danger.

Source:

S.L. 2011, ch. 272, § 7.

39-08-25. Failure to maintain control.

  1. An operator of a motor vehicle may not fail to maintain control of that motor vehicle. An individual is in violation of this section if that individual:
    1. Commits an offense under this title and, at the time of the offense, the individual was engaged in the operation of a motor vehicle while distracted; or
    2. Is determined to have been the operator of a motor vehicle that was involved in a reportable accident as defined in section 39-08-09 which resulted in property damage and, at the time the reportable accident occurred, the individual was engaged in the operation of a motor vehicle while distracted.
  2. An individual may be issued a citation or summons for any other traffic offense that was committed by the individual in relation to the individual’s commission of the traffic offense of failure to maintain control of a motor vehicle.
  3. As used in this section, “operation of a motor vehicle while distracted” means the operation of a motor vehicle by an individual who, while operating the vehicle, is engaged in an activity that:
    1. Is not necessary to the operation of the vehicle; and
    2. Actually impairs, or would reasonably be expected to impair, the ability of the individual to safely operate the vehicle.

Source:

S.L. 2017, ch. 269, § 4, effective August 1, 2017.

CHAPTER 39-09 Speed Restrictions

39-09-01. Basic rule — Penalty for violation.

No person may drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions. Any person who drives a vehicle upon a highway or private or public property open to the public for the operation of motor vehicles without heed to the requirements or restrictions of this section has committed careless driving and must be assessed a fee of thirty dollars.

Any person who, by reason of careless driving as herein defined, causes and inflicts injury upon the person of an operator of snow removal equipment engaged in snow removal operations or causes damage in excess of one thousand dollars to snow removal equipment engaged in snow removal is guilty of an infraction.

As used in this section, “snow removal equipment” means a vehicle that is operated by a person employed by or on behalf of an authority in charge of the maintenance of the highway to perform winter maintenance snow and ice removal, including plowing, hauling away, salting, and sanding.

Source:

S.L. 1927, ch. 162, § 4, subs. a; 1931, ch. 158, § 1, subs. a; R.C. 1943, § 39-0901; S.L. 1961, ch. 260, § 1; 1971, ch. 374, § 1; 1973, ch. 301, § 25; 1975, ch. 349, § 8; 1997, ch. 340, § 1.

Cross-References.

County safety council or director, see § 23-13-11.

Drivers to exercise due care as to pedestrians, see § 39-10-30.

Fees for noncriminal disposition, amount, see § 39-06.1-06.

Reckless driving, penalty, see § 39-08-03.

Notes to Decisions

Assured Clear Distance Ahead.

More and more the rule that one must drive at such a speed as to be able to stop within the assured clear distance ahead is being recognized as the imperative duty of the driver. Bagan v. Bitterman, 65 N.D. 423, 259 N.W. 266, 1935 N.D. LEXIS 124 (N.D. 1935); Stephenson v. Steinhauer, 188 F.2d 432, 1951 U.S. App. LEXIS 3047 (8th Cir. N.D. 1951).

Ordinarily a driver of a motor vehicle must drive at a speed which will enable him to stop within the assured clear distance ahead. Wisnewski v. Oster, 110 N.W.2d 283, 1961 N.D. LEXIS 83 (N.D. 1961).

Comparative Fault.

Where court found that plaintiff had violated N.D.C.C. § 39-09-01, and had been driving his vehicle in a manner which would not enable him to stop within the “assured clear distance ahead”, there was a genuine issue of material fact as to whether plaintiff’s negligence was as great as the negligence of railroad, and court erred in granting summary judgment to railroad. Kiemele v. Soo Line R.R., 93 F.3d 472, 1996 U.S. App. LEXIS 20889 (8th Cir. N.D. 1996).

Control and Lookout.

Where a complaint contained a general allegation that “defendant negligently drove, managed, operated and ran his said automobile upon and against and over the plaintiff” and contained other allegations of excessive speed and negligent operation, evidence that defendant was not driving at the proper speed, did not have proper control of the automobile, and did not maintain a proper lookout was properly received. Peterson v. Bober, 79 N.D. 300, 56 N.W.2d 331, 1952 N.D. LEXIS 123 (N.D. 1952).

Evidence.

Accuracy of speed detection device must be proved to satisfaction of trier of facts, but if evidence of speed as recorded by a speed detection device is admitted without objection as to the accuracy, such evidence stands unimpeached and may be used to convict for speeding without additional proof. State v. Albers, 211 N.W.2d 524, 1973 N.D. LEXIS 122 (N.D. 1973).

Circumstantial evidence may justify a conviction if it is of such probative value as to enable the trier of fact to say that the defendant is guilty beyond a reasonable doubt. State v. Johnson, 216 N.W.2d 704, 1974 N.D. LEXIS 240 (N.D. 1974).

Investigatory Stop.

Although an actual violation is not required for an officer to have reasonable and articulable suspicion to make an investigative stop, the trial court in its analysis required proof of a violation of the exhibition driving statute, and therefore did not apply the appropriate legal standard, in granting motion to suppress evidence supporting charge of driving while under the influence of alcohol. State v. Ova, 539 N.W.2d 857, 1995 N.D. LEXIS 186 (N.D. 1995).

Negligence.

The violation of this section may be evidence of negligence, but is not negligence per se. Larson v. Kubisiak, 1997 ND 22, 558 N.W.2d 852, 1997 N.D. LEXIS 13 (N.D. 1997).

DECISIONS UNDER PRIOR LAW

Contributory Negligence.

Driver of truck tractor, injured when he went into ditch along highway to avoid striking car stopped on highway, was not guilty of contributory negligence as a matter of law where he was driving with his lights on dim, or low, beam to enable him to see better under atmospheric condition (light snow or frost and wind causing drifting snow) at a speed of thirty to thirty-five miles an hour, he applied his brakes when he first saw car parked on highway and on turning left, to go around parked car when he started to skid, saw automobile coming toward him and let the truck go into ditch on the left side where it overturned. Bauer v. Kruger, 114 N.W.2d 553, 1962 N.D. LEXIS 68 (N.D. 1962).

Collateral References.

Negligent entrustment of motor vehicle to unlicensed driver, 55 A.L.R.4th 1100.

39-09-01.1. Care required in operating vehicle.

Any person driving a vehicle upon a highway shall drive the vehicle in a careful and prudent manner, having due regard to the traffic, surface, and width of the highway and other conditions then existing, and shall give such warnings as are reasonably necessary for safe operation under the circumstances. No person may drive any vehicle upon a highway in a manner to endanger the life, limb, or property of any person.

Source:

S.L. 1979, ch. 418, § 4.

Notes to Decisions

Negligence.

The violation of this section may be evidence of negligence, but is not negligence per se. Larson v. Kubisiak, 1997 ND 22, 558 N.W.2d 852, 1997 N.D. LEXIS 13 (N.D. 1997).

District court was required to make new findings and conclusions as to the allocation of fault for injuries sustained in a vehicle-related accident because it appeared that apportionment of fault was influenced materially by the driver's status as the designated driver for intoxicated friends. The driver's responsibility was limited by this section; North Dakota courts have not imposed a heightened duty on designated drivers by common law. Hiltner v. Owners Ins. Co., 869 F.3d 699, 2017 U.S. App. LEXIS 16471 (8th Cir. N.D. 2017).

DECISIONS UNDER PRIOR LAW

Constitutionality.

Since predecessor section prescribed an ascertainable standard of guilt by requiring that automobiles be driven “in a careful and prudent manner, having due regard to the traffic, surface, and width of the highway and other conditions then existing”, it was not unconstitutional and void for vagueness. State v. Hagge, 211 N.W.2d 395, 1973 N.D. LEXIS 126 (N.D. 1973).

Conflict Between Statutes.

Pursuant to predecessor section and the statute defining “manslaughter in the first degree”, a charge of manslaughter required proof of only ordinary negligence and the test to establish culpability for manslaughter due to criminal negligence in driving a motor vehicle was defined by predecessor section to be a lower degree of negligence than the test subsequently established by the negligent homicide law; the conflict between the punishment imposed under the manslaughter statute and that imposed under the negligent homicide statute could not be reconciled and, since the negligent homicide statute was a later legislative enactment, it would govern. State v. Hagge, 224 N.W.2d 560, 1974 N.D. LEXIS 144 (N.D. 1974).

Collateral References.

Motorist’s liability for striking person lying in road, 41 A.L.R.4th 303.

39-09-02. Speed limitations.

  1. Subject to the provisions of section 39-09-01 and except in those instances when a lower speed is specified in this chapter, it presumably is lawful for the driver of a vehicle to drive the same at a speed not exceeding:
    1. Twenty miles [32.19 kilometers] an hour when approaching within fifty feet [15.24 meters] of a grade crossing of any steam, electric, or street railway when the driver’s view is obstructed. A driver’s view is deemed to be obstructed when at any time during the last two hundred feet [60.96 meters] of the driver’s approach to such crossing, the driver does not have a clear and uninterrupted view of such railway crossing and of any traffic on such railway for a distance of four hundred feet [121.92 meters] in each direction from such crossing.
    2. Twenty miles [32.19 kilometers] an hour when passing a school during school recess or while children are going to or leaving school during opening or closing hours, unless a lower speed is designated or posted by local authorities.
    3. Twenty miles [32.19 kilometers] an hour when approaching within fifty feet [15.24 meters] and in traversing an intersection of highways when the driver’s view is obstructed. A driver’s view is deemed to be obstructed when at any time during the last fifty feet [15.24 meters] of the driver’s approach to such intersection, the driver does not have a clear and uninterrupted view of such intersection and of the traffic upon all of the highways entering such intersection for a distance of two hundred feet [60.96 meters] from such intersection.
    4. Twenty miles [32.19 kilometers] an hour when the driver’s view of the highway ahead is obstructed within a distance of one hundred feet [30.48 meters].
    5. Twenty-five miles [40.23 kilometers] an hour on any highway in a business district or in a residence district or in a public park, unless a different speed is designated and posted by local authorities.
    6. Fifty-five miles [88.51 kilometers] an hour on gravel, dirt, or loose surface highways, and on paved two-lane county and township highways if there is no speed limit posted, unless otherwise permitted, restricted, or required by conditions.
    7. Sixty-five miles [104.61 kilometers] an hour on paved two-lane highways if posted for that speed, unless otherwise permitted, restricted, or required by conditions.
    8. Seventy miles [112.65 kilometers] an hour on paved and divided multilane highways, unless otherwise permitted, restricted, or required by conditions.
    9. Seventy-five miles [120.70 kilometers] an hour on access-controlled, paved and divided, multilane interstate highways, unless otherwise permitted, restricted, or required by conditions.
  2. The director may designate and post special areas of state highways where lower speed limits apply. Differing limits may be established for different times of the day within highway construction zones which are effective when posted upon appropriate fixed or variable speed limit signs.
  3. Except as provided by law, it is unlawful for any person to drive a vehicle upon a highway at a speed that is unsafe or at a speed exceeding the speed limit prescribed by law or established pursuant to law.
  4. In charging a violation of the provisions of this section, the complaint must specify the speed at which the defendant is alleged to have driven and the speed which this section prescribes is prima facie lawful at the time and place of the alleged offense.

Source:

S.L. 1927, ch. 162, § 4; 1931, ch. 158, § 1; R.C. 1943, § 39-09-02; S.L. 1947, ch. 275, § 1; 1955, ch. 254, § 1; 1957, ch. 264, § 1; 1957 Supp., § 39-0902; S.L. 1959, ch. 289, § 11; 1961, ch. 261, § 1; 1975, ch. 346, §§ 1 to 3; 1987, ch. 463, §§ 5, 6; 1987, ch. 472, §§ 1, 2; 1995, ch. 380, § 1; 1997, ch. 337, §§ 3, 4; 2001, ch. 342, § 2; 2003, ch. 12, § 6; 2003, ch. 317, § 6; 2003, ch. 325, § 1; 2005, ch. 335, § 1.

Note.

Section 6 of chapter 331, S.L. 2001, provides:

APPLICATION OF DEMERIT POINTS OR FEES. The operator’s license demerit points or fees for driving in violation of section 39-09-02, or equivalent ordinance, as provided by Senate Bill No. 2088, as passed by the fifty-seventh legislative assembly, do not apply to offenses committed before July 1, 2001.”

Cross-References.

Fees for noncriminal disposition, amount, see § 39-06.1-06.

Notes to Decisions

Comparative Fault.

Where court found that plaintiff had violated N.D.C.C. § 39-09-01, and had been driving his vehicle in a manner which would not enable him to stop within the “assured clear distance ahead”, there was a genuine issue of material fact as to whether plaintiff’s negligence was as great as the negligence of railroad, and court erred in granting summary judgment to railroad. Kiemele v. Soo Line R.R., 93 F.3d 472, 1996 U.S. App. LEXIS 20889 (8th Cir. N.D. 1996).

Driving Through Fog.

A driver of a motor vehicle who proceeds through a fog, which limits his view to twenty feet ahead, at a speed of forty-five to fifty miles an hour is negligent as a matter of law. Wisnewski v. Oster, 110 N.W.2d 283, 1961 N.D. LEXIS 83 (N.D. 1961).

Modification by Local Authorities.

The power conferred upon local authorities by N.D.C.C. § 39-09-03 to set speed limits within their respective jurisdictions which may be greater or less than those provided by this section, authorizes local authorities to modify the absolute maximum speed limit provided by this section. City of Minot v. Hubrig, 110 N.W.2d 94, 1961 N.D. LEXIS 76 (N.D. 1961).

An ordinance, altering state speed limits within a city, does not become effective until such speed limits are posted as required by N.D.C.C. § 39-09-03. City of Minot v. Hubrig, 110 N.W.2d 94, 1961 N.D. LEXIS 76 (N.D. 1961).

Obstruction of View.

Partial obstruction of driver’s view is an interruption of view and requires reduced speed. Froemke v. Hauff, 147 N.W.2d 390, 1966 N.D. LEXIS 135 (N.D. 1966).

Pleadings in Civil Action.

The provision of this section for specifying speed in charging a violation of the section does not apply to the pleadings in a civil action. HAUSKEN v. COMAN, 66 N.D. 633, 268 N.W. 430, 1936 N.D. LEXIS 211 (N.D. 1936).

Speed Limits Not Absolute.

The speed limitations are themselves subject to the primary rule that the speed must be reasonable and proper under the conditions existing at the place of operation and one of the conditions of the right to drive at the maximum rate is freedom from obstruction of the view ahead. Schaller v. Bjornstad, 77 N.D. 51, 40 N.W.2d 59, 1949 N.D. LEXIS 55 (N.D. 1949).

The speed limits prescribed in this section are not absolute and it is unlawful to operate a motor vehicle at a speed that is not safe. Moe v. Kettwig, 68 N.W.2d 853, 1955 N.D. LEXIS 96 (N.D. 1955).

A driver of a motor vehicle upon a public highway has a duty to drive at a speed that is reasonable and proper having due regard to conditions then existing. Wisnewski v. Oster, 110 N.W.2d 283, 1961 N.D. LEXIS 83 (N.D. 1961).

A condition of the right to drive at the maximum statutory speed is freedom from obstruction of the view ahead and a driver whose view is obstructed by atmospheric conditions such as fog or rain must exercise care commensurate with the situation. Wisnewski v. Oster, 110 N.W.2d 283, 1961 N.D. LEXIS 83 (N.D. 1961).

Violation Evidence of Negligence.

A violation of the provisions of this section is not negligence as a matter of law but is evidence which the jury in a civil action may consider in determining the issue of the negligence of the driver. Attleson v. Boomgarden, 73 N.W.2d 448, 1955 N.D. LEXIS 156 (N.D. 1955).

Evidence of three unrelated speeding violations by defendant was properly excluded where defendant was not speeding at the time of the accident and there was no showing of a relationship between the speeding convictions and defendant’s driving ability. Dimond v. Kling, 221 N.W.2d 86, 1974 N.D. LEXIS 189 (N.D. 1974).

DECISIONS UNDER PRIOR LAW

Loss of Right of Way.

One who drove at an unlawful rate of speed thereby forfeited the right of way he might otherwise have had, but the loss of his right of way did not mean that the driver became a trespasser on the highway, nor did it mean that the right of way so lost was conferred on the driver of another car. LOGAN v. SCHJELDAHL, 66 N.D. 152, 262 N.W. 463, 1935 N.D. LEXIS 181 (N.D. 1935); Marsden v. O'Callaghan, 77 N.W.2d 531, 1956 N.D. LEXIS 129 (N.D. 1956).

Maximum Speed.

Absent special hazardous conditions, evidence that plaintiff was traveling at maximum speed specified in this section did not establish that plaintiff was guilty of contributory negligence to bar recovery for damages sustained when his vehicle struck unlighted haymover protruding across center of highway, especially where he had just passed two other vehicles without difficulty. Simon v. Woodland, 179 N.W.2d 422, 1970 N.D. LEXIS 127 (N.D. 1970).

Collateral References.

Duty of motor vehicle driver approaching place where children are playing or gathered, as to speed or control of car, 30 A.L.R.2d 5.

Application of “assured clear distance ahead” or “radius of lights” doctrine to accident involving pedestrian crossing street or highway, 31 A.L.R.2d 1424.

Meaning of “residence district”, “business district”, “school area”, and the like, in statutes and ordinances regulating speed of motor vehicles, 50 A.L.R.2d 343.

Reckless driving as affected by speed of vehicle, 52 A.L.R.2d 1337.

Jury instructions as to unavoidable accident involving speed of automobile, 65 A.L.R.2d 12.

Custom or practice of motor vehicles as affecting question of negligence as regards speed, 77 A.L.R.2d 1327.

Indefiniteness of automobile speed regulations as affecting validity, 6 A.L.R.3d 1326.

Speeding prosecution based on observation from aircraft, 23 A.L.R.3d 1444.

Competency of nonexpert’s testimony, based on sound alone, as to speed of motor vehicle involved in accident, 33 A.L.R.3d 1045.

Radar: proof, by radar or other mechanical or electronic devices, of violation of speed regulation, 47 A.L.R.3d 822.

Liability or recovery in automobile negligence action arising out of collision or upset as affected by operation of vehicle without front lights, or with improper front lights, 62 A.L.R.3d 560.

Liability or recovery in automobile negligence action arising out of collision or upset as affected by operation of vehicle without or with improper taillights or rear reflectors, 62 A.L.R.3d 771.

Liability or recovery in automobile negligence action arising out of collision or upset as affected by operation of vehicle without, or with improper, clearance, load, or similar auxiliary lights, 62 A.L.R.3d 844.

39-09-03. When local authorities may or shall alter maximum speed — Limits — Signs posted.

  1. Whenever local authorities in their respective jurisdictions, on the basis of an engineering and traffic investigation, determine that the maximum speed permitted under this title is greater or less than is reasonable and safe under the conditions found to exist upon a highway or part of a highway, the local authority may determine and declare a reasonable and safe maximum limit thereon which:
    1. Decreases the limit at intersections;
    2. Increases the limit within an urban district but not to more than fifty-five miles [88.51 kilometers] per hour; or
    3. Decreases the limit outside an urban district.
  2. Local authorities in their respective jurisdictions shall determine by an engineering and traffic investigation the proper maximum speed for arterial streets and shall declare a reasonable and safe maximum limit thereon which may be greater or less than the maximum speed permitted under this chapter for an urban district.
  3. Any altered limit established as hereinabove authorized shall be effective at all times or during hours of darkness or at other times as may be determined when appropriate signs giving notice thereof are erected upon such street or highway.
  4. Any alteration of maximum limits on state highways or extensions thereof in a municipality by local authorities may not be effective until such alteration has been approved by the director.
  5. Not more than six such alterations as hereinabove authorized may be made per mile [1.61 kilometers] along a street or highway, except in the case of reduced limits at intersections, and the difference between adjacent limits may not be more than ten miles [16.09 kilometers] per hour.

Source:

S.L. 1927, ch. 162, § 4; 1931, ch. 158, § 1; R.C. 1943, § 39-0903; S.L. 1959, ch. 285, § 2; 1975, ch. 349, § 9; 1989, ch. 469, § 1.

Cross-References.

Municipality may regulate the speed of vehicles and locomotives in limits of corporation, see § 40-05-01(18).

Notes to Decisions

Modification of Speed Limit.

An ordinance, altering state speed limits within a city, does not become effective until such speed limits are posted as required by this section. City of Minot v. Hubrig, 110 N.W.2d 94, 1961 N.D. LEXIS 76 (N.D. 1961).

The power conferred upon local authorities by this section authorizes them to modify the absolute maximum speed limit provided by section 39-09-02. City of Minot v. Hubrig, 110 N.W.2d 94, 1961 N.D. LEXIS 76 (N.D. 1961).

DECISIONS UNDER PRIOR LAW

Power of Cities.

Provisions giving cities power to regulate the use of streets were not limited by later provisions having to do with motor vehicles and motor vehicle traffic. State ex rel. Dreyer v. Brekke, 75 N.D. 468, 28 N.W.2d 598, 1947 N.D. LEXIS 84 (N.D. 1947).

39-09-04. Alteration of maximum speed limits on state highways.

The maximum speed limits specified in section 39-09-02 may be altered on all or any part of the state highway system by an administrative order by the director after a public hearing has been held. Such determination must be based on engineering and traffic investigations with primary consideration given to the establishment of reasonable and safe speeds, highway conditions, enforcement, and the general welfare. Speed limits established pursuant to this section shall be effective only when appropriate signs giving notice thereof are erected and such maximum speed limits may be declared to be effective at all times or at such times as are indicated upon said signs. Differing limits may be established for different times of the day, different types of vehicles, varying weather conditions, and other factors bearing on safe speeds, which shall be effective when posted upon appropriate fixed or variable signs.

Source:

S.L. 1927, ch. 162, § 7; R.C. 1943, § 39-0904; S.L. 1975, ch. 349, § 10.

39-09-04.1. Special speed limitations.

  1. No person may drive any vehicle equipped with solid rubber tires at a speed greater than a maximum of ten miles [16.09 kilometers] per hour.
  2. No person may drive a vehicle over any bridge or other elevated structure constituting a part of a highway at a speed which is greater than the maximum speed which can be maintained without hazard to such bridge or structure, when such structure is signposted as provided in this section.
  3. The director or other authority having jurisdiction may conduct an investigation of any public bridge, causeway, or viaduct and if the director finds that such structure cannot safely withstand the traveling of vehicles at the speed otherwise permissible under this chapter, such director or other authority shall determine and declare the maximum speed of vehicles such structure can withstand. The director or other authority shall cause or permit signs to be erected and maintained at a distance of one hundred feet [30.48 meters] from each end of such structure. Such signs must state the maximum speed permissible over such structure. The findings and determination of the director or other authority are conclusive evidence of the maximum speed which can be maintained without hazard to any such structure.

Source:

S.L. 1975, ch. 348, § 1.

39-09-05. Driving vehicle upon bridge, causeway, or viaduct at greater than maximum speed prohibited. [Repealed]

Repealed by S.L. 1975, ch. 348, § 17.

39-09-06. Speed limitations inapplicable to whom — Liability of exempt driver for reckless driving.

The speed limitations provided for in this chapter do not apply to class A authorized emergency vehicles. The exemptions provided for in this section do not protect the driver of any such vehicle from the consequences of a reckless disregard of the safety of others.

Source:

S.L. 1927, ch. 162, § 8; R.C. 1943, § 39-0906; S.L. 1963, ch. 264, § 5.

Notes to Decisions

Law Enforcement.

N.D.C.C. §§ 39-09-06 and 39-10-03 authorize law enforcement personnel to exceed the posted speed limit to pursue a suspected violator, so long as it can be done without danger to life or property; therefore, in a driving under the influence case, defendant’s Fourth Amendment rights were not violated by a trooper’s act of speeding to catch up and follow defendant’s car. Moreover, the trooper was not required to have a reasonable and articulable suspicion at the time the vehicle was initially pursued. State v. Bachmeier, 2007 ND 42, 729 N.W.2d 141, 2007 N.D. LEXIS 43 (N.D. 2007).

39-09-07. Speed zones on state highways.

Whenever the director with respect to highways and the superintendent of the North Dakota state highway patrol shall jointly determine upon the basis of an engineering and traffic investigation that the speed of vehicular traffic on a state highway is greater or less than is reasonable or safe under the conditions found to exist at any intersection or other place or upon any part of such highway to include streets within the corporate limits of any city, when such streets have been designated as part of any state highway, said officials acting jointly may determine and declare a reasonable and safe speed limit thereat not in excess of the maximum prescribed by law, which shall be effective at all times or during hours of daylight or darkness or at such other times as may be determined when appropriate signs giving notice thereof are erected at such intersections or other place or part of the highway.

Source:

S.L. 1955, ch. 254, § 3; R.C. 1943, 1957 Supp., § 39-0907; S.L. 1959, ch. 285, § 3.

39-09-07.1. Speed zones — Reduction limitation.

Except for highway construction zones, no street, road, or highway in the state highway system or any other township, county, or state road or highway may be posted in a manner which reduces the maximum speed limit on the street, road, or highway by more than twenty miles [32.19 kilometers] per hour between any two signs so posted in a speed zone. The maximum speed limit reduction between any two signs posted in a highway construction zone may not exceed thirty miles [48.28 kilometers] per hour.

Source:

S.L. 1981, ch. 389, § 3; 2005, ch. 335, § 2.

39-09-08. Regulation of speed control signs. [Repealed]

Repealed by S.L. 1975, ch. 349, § 41.

39-09-09. Minimum speed limits.

  1. An individual may not drive a motor vehicle at a reduced speed so as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.
  2. If the director and the superintendent of the highway patrol, acting jointly, or a local authority within the authority’s jurisdiction, determines on the basis of an engineering and traffic investigation that slow speeds on any highway or part of a highway impede the safe, normal, and reasonable movement of traffic, the director and superintendent or the local authority may determine and declare a minimum speed limit below which an individual may not drive a vehicle except when necessary for safe operation or in compliance with law, and that limit is effective when posted upon appropriate fixed or variable signs.

Source:

S.L. 1967, ch. 311, § 1; 1975, ch. 349, § 11; 2007, ch. 329, § 1.

Notes to Decisions

Driving at a Slow Speed.

The minimal facts in the record did not support a conclusion that officer had a reasonable and articulable suspicion that defendant was impeding traffic in violation of this section where there was no evidence of the length of a no-passing zone, nor if there were one, five, or ten cars coming up behind defendant, if defendant was truly impeding traffic in violation of the statute, or if defendant’s relatively slow speed only momentarily delayed some drivers from traveling at higher speeds while they traveled through a short no-passing zone. Salter v. North Dakota Dep't of Transp., 505 N.W.2d 111, 1993 N.D. LEXIS 163 (N.D. 1993).

Trial court properly overturned an order suspending appellee’s driving privileges for 91 days for driving under the influence of alcohol where the fact that appellee was driving 8-10 miles per hour in a 25 mile per hour zone at 12:43 a.m. did not provide the requisite reasonable and articulable suspicion to justify stopping his vehicle. There was no evidence that appellee was violating N.D.C.C. § 39-09-09(1) because the arresting officer was unaware of any other vehicles that were impeded by appellee’s slow speed. Johnson v. Sprynczynatyk, 2006 ND 137, 717 N.W.2d 586, 2006 N.D. LEXIS 144 (N.D. 2006).

Collateral References.

Slow speed, law against, civil cases, .

Law Reviews.

North Dakota Supreme Court Review (Johnson v. Sprynczynatyk), 83 N.D. L. Rev. 1085 (2007).

CHAPTER 39-10 General Rules of the Road

39-10-01. Provisions of title refer to vehicles upon the highways — Exceptions.

  1. The provisions of this title relating to the operation of vehicles apply to the operation of vehicles upon highways or other places open to the public for the operation of vehicles except when a different place is specifically referred to in a given section.
  2. The provisions of this title, or equivalent ordinances, relating to reporting of accidents, careless driving, exhibition driving, drag racing, reckless or aggravated reckless driving, driving while under the influence of intoxicating liquor or controlled substances, or fleeing or attempting to elude a peace officer apply upon highways and elsewhere.

Source:

S.L. 1955, ch. 237, § 2; R.C. 1943, 1957 Supp., § 39-1001; S.L. 1961, ch. 262, § 1; 1975, ch. 349, § 12; 1983, ch. 436, § 1.

Cross-References.

General penalty for violation of title, see § 39-07-06.

Persons under the influence of intoxicating liquor or controlled substances not to operate vehicle, see § 39-08-01.

Notes to Decisions

Evidence of Negligence.

Violations of statutory rules of the road are evidence of negligence. Imus v. Huber, 71 N.W.2d 339, 1955 N.D. LEXIS 119 (N.D. 1955).

Private Property.

Motorist in control of a motor vehicle located in a private open field off the highway was properly subject to arrest for actual physical control of a motor vehicle while under the influence of alcohol. State v. Novak, 338 N.W.2d 637, 1983 N.D. LEXIS 380 (N.D. 1983).

N.D.C.C. § 39-08-01 and this section must be construed together as a prohibition against being in actual physical control of a vehicle while under the influence of alcohol on private property as well as on the highways. Wiederholt v. Director, N.D. Dep't of Transp., 462 N.W.2d 445, 1990 N.D. LEXIS 219 (N.D. 1990), overruled in part, Suelzle v. N.D. DOT, 2020 ND 206, 949 N.W.2d 862, 2020 N.D. LEXIS 211 (N.D. 2020).

The language “elsewhere” found in subsection (2) of this section extended N.D.C.C. § 39-08-01 to private property. This extension included the offense of being in actual physical control. Wiederholt v. Director, N.D. Dep't of Transp., 462 N.W.2d 445, 1990 N.D. LEXIS 219 (N.D. 1990), overruled in part, Suelzle v. N.D. DOT, 2020 ND 206, 949 N.W.2d 862, 2020 N.D. LEXIS 211 (N.D. 2020).

Jury could have reasonably concluded defendant's driveway, although private, was an area to which the public had a right of access for vehicular use, and was within the scope of the offense of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor fourth-offense, for which defendant was convicted. State v. Mayland, 2017 ND 244, 902 N.W.2d 762, 2017 N.D. LEXIS 254 (N.D. 2017).

Public Property.

Park was a public place to which the public had the right to access, even though at the particular time defendant was arrested she was not legally entitled to be in the park because it was closed. City of Grand Forks v. Egley, 542 N.W.2d 104, 1996 N.D. LEXIS 18 (N.D. 1996).

Collateral References.

Liability for U-turn automobile collisions, 53 A.L.R.4th 849.

Motorist’s liability for signaling other vehicle or pedestrian to proceed, or to pass signaling vehicle, 14 A.L.R.5th 193.

39-10-01.1. Required obedience to traffic laws.

It is unlawful and, unless otherwise declared in this chapter or in chapter 39-06.1 with respect to particular offenses, it is a class B misdemeanor for any person to do any act forbidden or fail to perform any act required in this chapter.

Source:

S.L. 1975, ch. 349, § 13.

Notes to Decisions

Articulable and Reasonable Suspicion.

District court did not err in refusing to give defendant’s requested jury instruction under N.D.C.C. § 39-20-14(1) because he failed to raise the requirements for the initial traffic stop in an appropriate pretrial motion and thus, waived the issue; the failure to charge defendant with refusing to submit to an onsite screening test was irrelevant to the validity of the stop, which turned on whether the officer had an articulable and reasonable suspicion he was violating the law for failure to stop. State v. Taylor, 2018 ND 132, 911 N.W.2d 905, 2018 N.D. LEXIS 147 (N.D. 2018).

39-10-02. Obedience to police officer or firefighter.

No person may willfully refuse to comply with any lawful order or direction of any police officer or firefighter invested by law with authority to direct, control, or regulate traffic.

Source:

S.L. 1955, ch. 237, § 3; R.C. 1943, 1957 Supp., § 39-1002; S.L. 1975, ch. 349, § 14.

39-10-02.1. Person riding animal or driving animal-drawn vehicle.

In addition to any special regulations, any person riding an animal or driving any animal-drawn vehicle upon a roadway must be granted all of the rights and is subject to all of the duties applicable to the driver of a vehicle by this chapter, except those provisions which by their very nature can have no application.

Source:

S.L. 1963, ch. 283, § 9; 1975, ch. 348, § 2.

39-10-03. Class A authorized emergency vehicles.

  1. The driver of a class A authorized emergency vehicle may:
    1. Park or stand, irrespective of the provisions of this chapter.
    2. Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation.
    3. Exceed the speed limit so long as the driver does not endanger life or property.
    4. Disregard regulations governing direction of movement or turning in specified directions.
  2. The exceptions herein granted to a class A authorized emergency vehicle apply only:
    1. When the authorized emergency vehicle is in pursuit of or apprehension of a violator or a suspected violator requiring the use of these exemptions.
    2. When the class A authorized emergency vehicle is being operated in response to a reported emergency involving a possible personal injury, death, or damage to property, and when giving adequate warning by use of an oscillating, rotating, revolving, or flashing red or combination red and white lights that are visible under normal atmospheric conditions for at least five hundred feet [152.4 meters] and if appropriate, giving audible signal by siren or airhorn. A firetruck, ambulance, or law enforcement vehicle that is otherwise a class A authorized emergency vehicle may display an oscillating, rotating, revolving, or flashing blue light in addition to and under the same conditions as the other colors allowed in this subdivision.
    3. In any instance when the head of a law enforcement agency deems advisable within the area of that person’s jurisdiction for the protection of person and property and when giving audible signal by siren or when giving adequate warning by use of an oscillating, rotating, revolving, or flashing red or combination red and white lights which are visible under normal atmospheric conditions for at least five hundred feet [152.4 meters]. A firetruck, ambulance, or law enforcement vehicle that is otherwise a class A authorized emergency vehicle may display an oscillating, rotating, revolving, or flashing blue light in addition to and under the same conditions as the other colors allowed in this subdivision.
  3. A class A authorized emergency vehicle may display a steady red or red and blue lamp that is visible under normal atmospheric conditions for at least five hundred feet [152.4 meters] when involved in an incident, emergency, or any other related activity.
  4. Any law enforcement officer as provided in paragraph 2 of subdivision a of subsection 2 of section 39-01-01 having stopped another vehicle along a highway, and while still involved in that incident, or any other related activity, may use amber lights, visible under normal atmospheric conditions for at least five hundred feet [152.4 meters], for the purpose of maintaining traffic flow.

Source:

S.L. 1955, ch. 237, § 4; R.C. 1943, 1957 Supp., § 39-1003; S.L. 1959, ch. 288, § 2; 1963, ch. 264, § 3; 1965, ch. 276, § 1; 1979, ch. 424, §§ 1, 2; 1981, ch. 392, § 4; 1983, ch. 437, § 1; 2003, ch. 326, § 1; 2007, ch. 330, § 1; 2013, ch. 281, § 2; 2019, ch. 325, § 1, effective August 1, 2019.

Notes to Decisions

Gross Negligence.

A law enforcement officer has the statutory authority to pursue a person who flees from an arrest but in conducting that pursuit, the officer and his employer will be held accountable, and be subject to liability, for damages incurred as a result of the pursuit, if the officer’s conduct constitutes gross negligence. Jones v. Ahlberg, 489 N.W.2d 576, 1992 N.D. LEXIS 158 (N.D. 1992).

Law Enforcement.

N.D.C.C. §§ 39-09-06 and 39-10-03 authorize law enforcement personnel to exceed the posted speed limit to pursue a suspected violator, so long as it can be done without danger to life or property; therefore, in a driving under the influence case, defendant’s Fourth Amendment rights were not violated by a trooper’s act of speeding to catch up and follow defendant’s car. Moreover, the trooper was not required to have a reasonable and articulable suspicion at the time the vehicle was initially pursued. State v. Bachmeier, 2007 ND 42, 729 N.W.2d 141, 2007 N.D. LEXIS 43 (N.D. 2007).

39-10-03.1. Class B authorized emergency vehicles.

  1. The driver of a class B authorized emergency vehicle may:
    1. Park or stand, irrespective of the provisions of this chapter.
    2. Exceed the speed limit so long as the driver does not endanger life or property during the time of a local or national disaster.
    3. Disregard regulations governing direction of movement or turning in specified directions.
  2. The exceptions granted in this section to a class B authorized emergency vehicle apply only when the authorized emergency vehicle is displaying an amber and white light visible under normal atmospheric conditions for a distance of five hundred feet [152.4 meters] in any direction, and:
    1. When it is necessary for the authorized emergency vehicle to use these exemptions for the immediate protection of life or property;
    2. When an authorized emergency vehicle is stopped on a highway for the purpose of performing a duty as required of the driver; or
    3. When traveling at a speed slower than the normal flow of traffic.

Source:

S.L. 1963, ch. 264, § 4; 2015, ch. 271, § 1, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 271, S.L. 2015 became effective August 1, 2015.

39-10-03.2. Class C authorized emergency vehicles.

All class B specifications apply to class C authorized emergency vehicles except that a blue flashing light must be displayed in place of an amber light as provided in section 39-10-03.1.

Source:

S.L. 1965, ch. 262, § 2; 1979, ch. 401, § 2; 1987, ch. 438, § 2; 2005, ch. 16, § 26; 2011, ch. 260, § 2.

39-10-04. Obedience to and required traffic-control devices.

  1. The driver of any vehicle shall obey the instructions of any official traffic-control device applicable thereto placed in accordance with the provisions of this chapter, unless otherwise directed by a traffic or police officer, subject to the exceptions granted the driver of an authorized emergency vehicle in this chapter.
  2. No provision of this chapter for which traffic-control devices are required may be enforced against an alleged violator if at the time and place of the alleged violation an official device is not in proper position and sufficiently legible to be seen by an ordinarily observant person. Whenever a state statute does not state that devices are required, such statute is effective even though no devices are erected or in place.
  3. Whenever official traffic-control devices are placed in positions approximately conforming to the requirements of this title, such devices must be presumed to have been so placed by the official act or direction of lawful authority, unless the contrary is established by competent evidence.
  4. Any official traffic-control device placed pursuant to the provisions of this title and purporting to conform to the lawful requirements pertaining to such devices must be presumed to comply with the requirements of this title, unless the contrary is established by competent evidence.

Source:

S.L. 1955, ch. 237, § 5; R.C. 1943, 1957 Supp., § 39-1004; S.L. 1963, ch. 283, § 10; 1967, ch. 312, § 2; 1975, ch. 349, § 15.

Collateral References.

Stop-and-go signal: liability for automobile accident other than direct collision with pedestrian as affected by reliance on or disregard of stop-and-go signal, 2 A.L.R.3d 12.

Stop-and-go signal: liability for collision of automobile with pedestrian at intersection as affected by reliance on or disregard of stop-and-go signal, 2 A.L.R.3d 155.

Yield sign: liability for automobile accident at intersection as affected by reliance upon or disregard of “yield” sign or signal, 2 A.L.R.3d 275.

Sign or signal other than stop-and-go signal, liability for collision of automobile with pedestrian at intersection as affected by reliance on or disregard of, 3 A.L.R.3d 557.

Stop signal or sign: liability for automobile accident at intersection as affected by reliance on or disregard of unchanging stop signal or sign, 3 A.L.R.3d 180.

Caution signal: liability for automobile accident at intersection as affected by reliance on or disregard of unchanging caution, slow, danger or like sign or signal, 3 A.L.R.3d 507.

39-10-05. Traffic-control signal legend.

Whenever traffic is controlled by traffic-control signals exhibiting different colored lights, or colored lighted arrows, successively one at a time or in combination, only the colors green, red, and yellow may be used, except for special pedestrian signals carrying a word or legend, and said lights must indicate and apply to drivers of vehicles and pedestrians as follows:

  1. Green indications:
    1. Vehicular traffic facing a circular green indication may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. But vehicular traffic, including vehicles turning right or left, shall yield the right of way to other vehicles and to pedestrians lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited.
    2. Vehicular traffic facing a green arrow indication, shown alone or in combination with another indication, may cautiously enter the intersection only to make the movement indicated by such arrow or such other movement as is permitted by other indications shown at the same time. Such vehicular traffic shall yield the right of way to pedestrians lawfully within an adjacent crosswalk and to other traffic lawfully using the intersection.
    3. Unless otherwise directed by a pedestrian-control signal as provided for in section 39-10-06, pedestrians facing any green indication, except when the sole green indication is a turn arrow, may proceed across the roadway within any marked or unmarked crosswalk.
  2. Steady yellow indication:
    1. Vehicular traffic facing a steady circular yellow or yellow arrow indication is thereby warned that the related green movement is being terminated or that a red indication will be exhibited immediately thereafter when vehicular traffic may not enter the intersection.
    2. Pedestrians facing a steady circular yellow or yellow arrow indication, unless otherwise directed by a pedestrian-control signal as provided for in section 39-10-06, are thereby advised that there is insufficient time to cross the roadway before a red indication is shown and no pedestrian may then start to cross the roadway.
  3. Steady red indication:
    1. Vehicular traffic facing a steady circular red indication alone shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or if none, then before entering the intersection and shall remain standing until an indication to proceed is shown, except as provided for in subdivision c.
    2. Vehicular traffic facing a steady red arrow indication may not enter the intersection to make the movement indicated by the arrow and, unless entering the intersection to make a movement permitted by another indication, must stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or if none, then before entering the intersection and must remain standing until an indication permitting the movement indicated by the red arrow is shown except as provided for in subdivision c.
    3. Except when a sign is in place prohibiting a turn, vehicular traffic facing any steady red indication may cautiously enter the intersection to turn right, or to turn left from a one-way street into a one-way street, after stopping as required by subdivisions a and b. Such vehicular traffic shall yield the right of way to pedestrians lawfully within adjacent crosswalk and to other traffic lawfully using the intersection.
    4. Unless otherwise directed by a pedestrian-control signal as provided for in section 39-10-06, pedestrians facing a steady circular red or red arrow indication alone may not enter the roadway.
  4. In the event an official traffic-control signal is erected and maintained at a place other than an intersection, the provisions of this section are applicable, except as to those provisions which by their nature can have no application. Any stop required must be made at a sign or marking on the pavement indicating where the stop must be made, but in the absence of any such sign or marking the stop must be made at the signal.

Source:

S.L. 1955, ch. 237, § 6; R.C. 1943, 1957 Supp., § 39-1005; S.L. 1969, ch. 343, § 1; 1973, ch. 304, § 1; 1975, ch. 347, § 1; 1977, ch. 358, § 1; 1999, ch. 349, § 1.

39-10-06. Pedestrian control signals.

Whenever special pedestrian-control signals exhibiting the words “Walk” or “Don’t Walk” or the symbols of a walking person, symbolizing “Walk”, or an upraised hand, symbolizing “Don’t Walk” are in place, such signals must indicate as follows:

  1. “Walk”: Pedestrians facing such indication may proceed across the roadway in the direction of the indication and must be given the right of way by the drivers of all vehicles.
  2. “Don’t Walk” (steadily illuminated): A pedestrian may not start to cross the roadway in the direction of such indication.
  3. “Don’t Walk” (flashing): A pedestrian may not start to cross the roadway in the direction of the indication, but any pedestrian who has partially completed a crossing during the “Walk” signal must proceed in the direction of the indication to a sidewalk or safety island.

Source:

S.L. 1955, ch. 237, § 7; R.C. 1943, 1957 Supp., § 39-1006; S.L. 1975, ch. 349, § 16; 1999, ch. 349, § 2.

Cross-References.

Pedestrians, general rules as to, see §§ 39-10-27 to 39-10-34.

Collateral References.

Who is “pedestrian” entitled to rights and subject to duties provided by traffic regulations or judicially stated, 35 A.L.R.4th 1117.

39-10-07. Flashing signals.

  1. Whenever an illuminated flashing red or yellow light is used in a traffic signal or with a traffic sign, it requires obedience by vehicular traffic as follows:
    1. Flashing red (stop indication). When a red lens is illuminated with rapid intermittent flashes, drivers of vehicles shall stop at a clearly marked stop line, or, if none, before entering the crosswalk on the near side of the intersection, or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it, and the right to proceed is subject to the rules applicable after making a stop at a stop sign.
    2. Flashing yellow (caution indication). When a yellow lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through the intersection or past such indication only with caution.
    3. Flashing red arrow and flashing yellow arrow indications have the same meaning as the corresponding flashing circular indications, except that they apply only to drivers of vehicles intending to make the movement indicated by the arrow.
  2. This section does not apply at railroad grade crossings. Conduct of drivers of vehicles approaching railroad grade crossings is governed by the requirements set forth in section 39-10-41.

Source:

S.L. 1955, ch. 237, § 8; R.C. 1943, 1957 Supp., § 39-1007; S.L. 1975, ch. 349, § 17; 1987, ch. 73, § 20; 1999, ch. 349, § 3.

39-10-07.1. Lane-direction – control signals.

When lane-direction-control signals are placed over the individual lanes of a street or highway, vehicular traffic may travel in any lane over which a green signal is shown, but may not enter or travel in any lane over which a red signal is shown.

Source:

S.L. 1975, ch. 347, § 2.

39-10-07.2. Display of unauthorized signs, signals, or markings.

  1. No person may place, maintain, or display upon or in view of any highway, any unauthorized sign, signal, marking, or device which purports to be or is an imitation of or resembles an official traffic-control device or railroad sign or signal, or which attempts to direct the movement of traffic, or which hides from view or interferes with the effectiveness of an official traffic-control device or any railroad sign or signal.
  2. No person may place or maintain nor may any public authority permit upon any highway any traffic sign or signal bearing thereon any commercial advertising.
  3. This section may not be deemed to prohibit the erection upon private property adjacent to highways of signs giving useful directional information and of a type that cannot be mistaken for official signs.
  4. Every such prohibited sign, signal, or marking is hereby declared to be a public nuisance and the authority having jurisdiction over the highway is hereby empowered to remove the same or cause it to be removed without notice when located on highway right of way.
  5. No person may place, maintain, or display upon or within the right of way of any highway any sign, post, pole, mailbox, or signal which has a red lamp or red reflector visible to traffic. The provisions of this subsection do not apply to official traffic devices, lamps, or reflectors on motor vehicles or bicycles, or railroad signals or signs.
  6. This section does not prohibit the use of portable battery-powered warning devices emitting a flashing red light placed upon a highway to alert oncoming traffic to a disabled or stopped motor vehicle.

Source:

S.L. 1975, ch. 347, § 3; 1977, ch. 359, § 1; 2003, ch. 327, § 1.

39-10-07.3. Interference with official traffic-control device or railroad sign or signal.

A person may not, without lawful authority, attempt to or in fact alter, deface, injure, knock down, remove, or interfere with the operation of any official traffic-control device or any railroad sign or signal or any inscription, shield, or insignia thereon, or any other part thereof.

Source:

S.L. 1975, ch. 349, § 18; 2005, ch. 336, § 1.

39-10-08. Drive on right side of roadway — Exceptions.

  1. Upon all roadways of sufficient width a vehicle must be driven upon the right half of the roadway, except as follows:
    1. When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement;
    2. When an obstruction exists making it necessary to drive to the left of the center of the highway; provided, any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard;
    3. Upon a roadway divided into three marked lanes for traffic under the rules applicable thereon; or
    4. Upon a roadway restricted to one-way traffic.
  2. Upon all roadways any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing must be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn in an intersection or into a private road or driveway.
  3. Upon any roadway having four or more lanes for moving traffic and providing for two-way movement of traffic, no vehicle may be driven to the left of the centerline of the roadway, except when authorized by official traffic-control devices designating certain lanes to the left side of the center of the roadway for use by traffic not otherwise permitted to use such lanes, or except as permitted under subdivision b of subsection 1. However, this subsection may not be construed as prohibiting the crossing of the centerline in making a left turn into or from an alley, private road, or driveway.

Source:

S.L. 1955, ch. 237, § 9; R.C. 1943, 1957 Supp., § 39-1008; S.L. 1963, ch. 264, § 6; 1975, ch. 347, § 4.

Notes to Decisions

Marked Lanes.

Where evidence showed extension of yellow lines marking lanes for traffic in both directions from points where automobiles stood after collision and there was no material conflict in evidence regarding them, failure to accompany instruction stating law requiring vehicles to be driven as nearly as practicable entirely within single marked lane with instruction requiring jury to find existence of lines clearly marking lanes was not error in absence of special request therefor. Fisher v. Suko, 111 N.W.2d 360, 1961 N.D. LEXIS 98 (N.D. 1961).

Negligence Per Se.

It is negligence for one to drive along wrong side of road when conditions are such that the driver is unable to see ahead, as where his view is obstructed. Hart v. Grim, 179 F.2d 334, 1950 U.S. App. LEXIS 2217 (8th Cir. N.D. 1950).

Probable Cause.

Where officer observed defendant commit a moving violation, by crossing the center line, and her observation gave her a valid basis to stop defendant’s vehicle, the validity of the stop was not vitiated merely because the officer subjectively stopped the vehicle for another reason, i.e., another officer told her to, which, in itself, may not have provided an adequate basis for the stop. Zimmerman v. North Dakota Dep't of Transp. Dir, 543 N.W.2d 479, 1996 N.D. LEXIS 40 (N.D. 1996).

Once police officer observed defendant crossing the center line, officer had probable cause to believe defendant violated this section, had sufficient grounds for conducting an investigatory stop, and thus, evidence obtained from that stop was correctly admitted. State v. Loh, 2000 ND 188, 618 N.W.2d 477, 2000 N.D. LEXIS 204 (N.D. 2000).

Where a trooper observed defendant commit traffic violations by crossing the center and fog lines of a two-lane highway, there was a reasonable and articulable suspicion for initiating a traffic stop in a driving under the influence case. Moreover, the trooper’s onboard camera captured video images of such, corroborating the trooper’s testimony. State v. Bachmeier, 2007 ND 42, 729 N.W.2d 141, 2007 N.D. LEXIS 43 (N.D. 2007).

Snowplow.

This section does not apply to a snowplow while being used to remove snow from highway. Spielman v. Weber, 118 N.W.2d 727, 1962 N.D. LEXIS 107 (N.D. 1962).

Suspension of Driver’s License.

Where a police officer observed a vehicle with jerking and weaving movements and saw it cross over the center line four times in a distance of about two miles, and when he stopped the vehicle, the defendant driver had the odor of alcohol and red bloodshot eyes, a preponderance of the evidence supported the hearing officer’s decision to suspend defendant’s license. Moran v. DOT, 543 N.W.2d 767, 1996 N.D. LEXIS 42 (N.D. 1996).

DECISIONS UNDER PRIOR LAW

Right-Hand Lane.

Where plaintiff was driving her slow-moving vehicle in the right-hand lane of a four-lane highway at the time her vehicle was struck in the rear by defendant’s vehicle, the jury would not have been justified in finding that plaintiff was contributorily negligent in not driving her vehicle on the eight-foot tarred shoulder adjacent to such road. Teegarden v. Dahl, 138 N.W.2d 668, 1965 N.D. LEXIS 101 (N.D. 1965).

Collateral References.

Liability for collision due to swaying or swinging of motor vehicle or trailer, 1 A.L.R.2d 167.

Reckless driving and failing to keep to right, 52 A.L.R.2d 1337.

Liability or recovery in automobile negligence action arising out of collision or upset as affected by operation of vehicle without front lights, or with improper front lights, 62 A.L.R.3d 560.

Liability or recovery in automobile negligence action arising out of collision or upset as affected by operation of vehicle without or with improper taillights or rear reflectors, 62 A.L.R.3d 771.

Liability or recovery in automobile negligence action arising out of collision or upset as affected by operation of vehicle without, or with improper, clearance, load, or similar auxiliary lights, 62 A.L.R.3d 844.

39-10-09. Passing vehicles proceeding in opposite directions.

Drivers of vehicles proceeding in opposite directions shall pass each other to the right, and upon roadways having width for not more than one line of traffic in each direction each driver shall give to the other at least one-half of the main-traveled portion of the roadway as nearly as possible.

Source:

S.L. 1955, ch. 237, § 10; R.C. 1943, 1957 Supp., § 39-1009.

Collateral References.

Rights, duties, and liability with respect to narrow bridge or passage as between motor vehicles approaching from opposite directions, 47 A.L.R.2d 142.

39-10-10. Use of multiple-beam road-lighting equipment. [Repealed]

Repealed by S.L. 1963, ch. 283, § 20.

39-10-11. Overtaking a vehicle on the left.

The following rules govern the overtaking and passing of vehicles proceeding in the same direction, subject to those limitations, exceptions, and special rules hereinafter stated:

  1. The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and may not again drive to the right side of the roadway until safely clear of the overtaken vehicle.
  2. Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and may not increase the speed of that driver’s vehicle until completely passed by the overtaking vehicle.

Source:

S.L. 1955, ch. 237, § 12; R.C. 1943, 1957 Supp., § 39-1011; S.L. 1971, ch. 374, § 2; 1975, ch. 349, § 19.

Notes to Decisions

Passing Bicycles.

Automobile driver overtaking boys on bicycles had duty to give warning of his approach or intention to pass. Moe v. Kettwig, 68 N.W.2d 853, 1955 N.D. LEXIS 96 (N.D. 1955).

Passing Stopped Vehicle.

A vehicle which temporarily stops in its lane of travel is “proceeding” within the statutory rule that an overtaking driver shall pass at a safe distance to the left of the vehicle proceeding in the same direction. Hutchinson v. Kinzley, 66 N.D. 25, 262 N.W. 251, 1935 N.D. LEXIS 167 (N.D. 1935).

Sounding Horn.

Purpose of sounding horn before passing, or attempting to pass another vehicle upon highway, is to alert other driver that one intends to pass. Muhlhauser v. Archie Campbell Constr. Co., 160 N.W.2d 524, 1968 N.D. LEXIS 71 (N.D. 1968).

When a motorist contacted a dispatcher on a cell phone and complained of a driver who sped up and slowed down when the motorist attempted to pass, and the dispatcher relayed this information to an officer, the officer did not have reasonable suspicion to stop the vehicle. Based on the record, it was not entirely clear the information the calling motorist conveyed amounted to a traffic violation where there was no information to suggest the motorist made an audible signal that he intended to pass. Gabel v. N.D. DOT, 2006 ND 178, 720 N.W.2d 433, 2006 N.D. LEXIS 183 (N.D. 2006).

Collateral References.

Rights and liabilities as between drivers proceeding in same direction, where one or both attempt to pass on left of another vehicle so proceeding, 27 A.L.R.2d 317.

Reciprocal rights, duties, and liabilities where motor vehicle proceeding in same direction cuts back to the right, 48 A.L.R.2d 232.

Duty and liability of overtaken driver with respect to adjusting speed to that of passing vehicle, 91 A.L.R.2d 1260.

Giving audible signal where driver’s view ahead is obstructed at curve or hill, duty and liability with respect to, 16 A.L.R.3d 897.

Duty and liability with respect to giving audible signal before passing, 22 A.L.R.3d 325.

39-10-11.1. Overtaking and passing a bicycle.

The driver of a vehicle shall leave a safe distance when overtaking and passing a bicycle proceeding in the same direction on a roadway and shall maintain clearance until safely clear of the overtaken bicycle. “Safe distance” as used in this section means no less than three feet [0.91 meters] clearance.

Source:

S.L. 2021, ch. 297, § 1, effective August 1, 2021.

39-10-12. When overtaking on the right is permitted.

  1. The driver of a vehicle may overtake and pass upon the right of another vehicle only under the following conditions:
    1. When the vehicle overtaken is making or about to make a left turn; or
    2. Upon a roadway with unobstructed pavement of sufficient width for two or more lines of vehicles moving lawfully in the direction being traveled by the overtaking vehicle.
  2. The driver of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety. Such movement may not be made by driving off the roadway.

Source:

S.L. 1955, ch. 237, § 13; R.C. 1943, 1957 Supp., § 39-1012; S.L. 1963, ch. 264, § 7; 1975, ch. 349, § 20.

Collateral References.

Reckless driving in overtaking and passing vehicle, 52 A.L.R.2d 1337.

Intersection, duty to keep to right, 53 A.L.R.2d 850.

Automobiles: liability for U-turn collisions, 53 A.L.R.4th 849.

39-10-13. Limitations on overtaking on the left.

No vehicle may be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to an authorized lane of travel as soon as practicable, and in the event the passing movement involves the use of a lane authorized for vehicles approaching from the opposite direction, before coming within two hundred feet [60.96 meters] of any approaching vehicle.

Source:

S.L. 1955, ch. 237, § 14; R.C. 1943, 1957 Supp., § 39-1013; S.L. 1975, ch. 349, § 21.

39-10-14. Further limitations on driving on left of center of roadway.

  1. No vehicle may be driven to the left side of the roadway under any of the following conditions:
    1. When approaching or upon the crest of a grade or a curve in the highway where the driver’s view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction.
    2. When approaching within one hundred feet [30.48 meters] of or traversing any intersection or railroad grade crossing.
    3. When the view is obstructed upon approaching within one hundred feet [30.48 meters] of any bridge, viaduct, or tunnel.
  2. The foregoing limitations do not apply upon a one-way roadway, nor under the conditions described in section 39-10-08, nor to the driver of a vehicle turning left into or from an alley, private road, or driveway.

Source:

S.L. 1955, ch. 237, § 15; R.C. 1943, 1957 Supp., § 39-1014; S.L. 1975, ch. 347, § 5.

Notes to Decisions

Road Maintaining Equipment.

Exemption from rules of road provided by N.D.C.C. § 39-07-05 encompasses this section; where road maintainer was being operated on left-hand side of well-traveled highway, while proceeding up steep grade, with obstructed view, and without any warning devices except small red flag mounted on the cab, whether such operation was safe and prudent was question for jury in action for personal injury sustained in collision between automobile and the maintainer; in order to be exempt from provisions establishing rules of road, county had burden of proving that it was actually engaged in work on highway, that such work was necessary and that it was carried out in safe manner. Linington v. McLean County, 161 N.W.2d 487, 1968 N.D. LEXIS 81 (N.D. 1968).

Collateral References.

Statutes regulating or forbidding passing on hill by vehicle, construction and application of, 60 A.L.R.2d 211.

Street or highway intersection within traffic rules, definition, 7 A.L.R.3d 1204.

Giving audible signal where driver’s view ahead is obstructed at curve or hill, duty and liability with respect to, 16 A.L.R.3d 897.

39-10-15. No-passing zones.

  1. The director and local authorities are hereby authorized to determine those portions of any highway under their respective jurisdiction where overtaking and passing or driving on the left side of the roadway would be especially hazardous and may by appropriate signs or markings on the roadway indicate the beginning and end of such zones and when such signs or markings are in place and clearly visible to an ordinarily observant person, every driver of a vehicle shall obey the directions thereof.
  2. Where signs or markings are in place to define a no-passing zone as set forth in subsection 1, no driver may at any time drive on the left side of the roadway within such no-passing zone or on the left side of any pavement striping designed to mark such no-passing zone throughout its length.
  3. This section does not apply under the conditions described in section 39-10-08 nor to the driver of a vehicle turning left into or from an alley, private road, or driveway.

Source:

S.L. 1955, ch. 237, § 16; R.C. 1943, 1957 Supp., § 39-1015; S.L. 1963, ch. 283, § 11; 1975, ch. 347, § 6.

39-10-16. One-way roadways and rotary traffic islands.

  1. The director and local authorities with respect to highways under their respective jurisdictions may designate any highway, roadway, part of a roadway, or specific lanes upon which vehicular traffic shall proceed in one direction at all or such times as shall be indicated by official traffic-control devices.
  2. Upon a roadway so designated for one-way traffic, a vehicle shall be driven only in the direction designated at all or at such times as shall be indicated by official traffic-control devices.
  3. A vehicle passing around a rotary traffic island must be driven only to the right of such island.

Source:

S.L. 1955, ch. 237, § 17; R.C. 1943, 1957 Supp., § 39-1016; S.L. 1975, ch. 347, § 7.

Collateral References.

One-way street, duty and liability of vehicle driver approaching intersection of one-way street with other street, 62 A.L.R.2d 275.

39-10-17. Driving on roadways laned for traffic.

Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules in addition to all others consistent herewith apply:

  1. A vehicle must be driven as nearly as practicable entirely within a single lane and may not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
  2. Upon a roadway which is divided into three lanes and provides for two-way traffic, a vehicle may not be driven in the center lane except when overtaking and passing another vehicle traveling in the same direction when such center lane is clear of traffic within a safe distance, or in preparation for making a left turn or where such center lane is at the time allocated exclusively to traffic moving in the same direction that the vehicle is proceeding and such allocation is designated by official traffic-control devices.
  3. Official traffic-control devices may be erected directing specified traffic to use a designated lane or designating those lanes to be used by traffic moving in a particular direction regardless of the center of the roadway and drivers of vehicles shall obey the directions of every such device.
  4. Official traffic-control devices may be installed prohibiting the changing of lanes on sections of roadway and drivers of vehicles shall obey the directions of every such device.

Source:

S.L. 1955, ch. 237, § 18; R.C. 1943, 1957 Supp., § 39-1017; S.L. 1975, ch. 347, § 8.

Notes to Decisions

Marking of Lanes.

Where evidence showed extension of yellow lines marking lanes for traffic in both directions from points where automobiles stood after collision and there was no material conflict in the evidence regarding them, failure to accompany instruction stating law requiring vehicles to be driven as nearly as practicable entirely within single marked lane with instruction requiring jury to find existence of lines clearly marking lanes was not error where there was no special request therefor. Fisher v. Suko, 111 N.W.2d 360, 1961 N.D. LEXIS 98 (N.D. 1961).

Violation of Statute.

Trial court properly denied defendant’s motion to suppress evidence obtained from a traffic stop because the evidence presented at the suppression hearing was sufficient to support the conclusion that the arresting officer had a reasonable and articulable suspicion that defendant had violated the practicable lane statute, N.D.C.C. § 39-10-17(1), by crossing over the fog line. State v. Wolfer, 2010 ND 63, 780 N.W.2d 650, 2010 N.D. LEXIS 59 (N.D. 2010).

In a drug case, a traffic stop was legal because of a sergeant’s observation of defendant crossing over the solid white line on the road, in violation of the practicable lane statute; whether the stop was pretextual was irrelevant because the validity of an investigatory stop turned on whether there was a reasonable suspicion that a law had been broken. State v. Ostby, 2014 ND 180, 853 N.W.2d 556, 2014 N.D. LEXIS 184 (N.D. 2014).

District court properly denied defendant's motion to suppress because a police officer had a reasonable and articulable suspicion to stop defendant's vehicle where defendant's stock trailer was observed weaving and swerving within a lane, striking the center and fog lines in an early morning hour. State v. James, 2016 ND 68, 876 N.W.2d 720, 2016 N.D. LEXIS 50 (N.D. 2016).

39-10-18. Following too closely.

  1. The driver of a motor vehicle may not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.
  2. The driver of any truck or motor vehicle drawing another vehicle when traveling upon a roadway outside of a business or residence district and which is following another truck or motor vehicle drawing another vehicle shall, whenever conditions permit, leave sufficient space so that an overtaking vehicle may enter and occupy such space without danger, except that this does not prevent a truck or motor vehicle drawing another vehicle from overtaking and passing any vehicle or combination of vehicles.
  3. Motor vehicles being driven upon any roadway outside of a business or residence district in a caravan or motorcade whether or not towing other vehicles must be so operated as to allow sufficient space between each such vehicle or combination of vehicles so as to enable any other vehicle to enter and occupy such space without danger. This provision does not apply to funeral processions.
  4. This section does not apply to the operation of a non-lead vehicle in a platoon.
  5. As used in this section and section 39-10-74, “platoon” means a group of motor vehicles using vehicle-to-vehicle communications to travel in a unified manner at close following distances on a multilane, limited-access, divided highway.

Source:

S.L. 1955, ch. 237, § 19; R.C. 1943, 1957 Supp., § 39-1018; S.L. 1975, ch. 349, § 22; 2019, ch. 329, § 1, effective August 1, 2019.

Notes to Decisions

Evidence of Negligence.

A violation of subsection (1) of this section is not negligence per se, but is merely evidence of negligence. Glawe v. Rulon, 284 F.2d 495, 1960 U.S. App. LEXIS 3168 (8th Cir. N.D. 1960); Larson v. Kubisiak, 1997 ND 22, 558 N.W.2d 852, 1997 N.D. LEXIS 13 (N.D. 1997).

Question for Jury.

Where plaintiff taxicab driver allegedly sustained injuries when his taxi which he had stopped for traffic signal was struck in rear by car of defendant on slippery street, trial court did not err in determining that, under the evidence and applicable North Dakota law, issue of liability of defendant was for the jury and in denying plaintiff’s motion for a directed verdict. Glawe v. Rulon, 284 F.2d 495, 1960 U.S. App. LEXIS 3168 (8th Cir. N.D. 1960).

39-10-19. Driving on divided highway.

Whenever any highway has been divided into two or more roadways by leaving an intervening space or by a physical barrier or clearly indicated dividing section so constructed as to impede vehicular traffic, every vehicle must be driven only upon the right-hand roadway, unless directed or permitted to use another roadway by official traffic-control devices or police officers. No vehicle may be driven over, across, or within any such dividing space, barrier, or section, except through an opening in such physical barrier or dividing section or space or at a crossover or intersection as established by public authority, unless such crossing is specifically prohibited and such prohibition is indicated by appropriate traffic-control devices.

Source:

S.L. 1955, ch. 237, § 20; R.C. 1943, 1957 Supp., § 39-1019; S.L. 1975, ch. 349, § 23.

39-10-20. Restricted access.

No person may drive a vehicle onto or from any controlled-access roadway except at such entrances and exits as are established by public authority.

Source:

S.L. 1955, ch. 257, § 21; R.C. 1943, 1957 Supp., § 39-1020.

39-10-21. Restrictions on use of controlled-access roadway.

The director may by order, and local authorities may by ordinance, with respect to any controlled-access roadway under their respective jurisdictions, prohibit the use of any such roadway by any class or kind of traffic which is found incompatible with the normal and safe movement of traffic.

The director or the local authority adopting any such prohibition shall erect and maintain official traffic-control devices on the controlled-access roadway on which such prohibitions are applicable and when in place no person may disobey the restrictions stated on such devices.

Source:

S.L. 1955, ch. 237, § 22; R.C. 1943, 1957 Supp., § 39-1021; S.L. 1975, ch. 348, § 3.

39-10-21.1. Closing road because of hazardous conditions — Posting of official traffic-control devices — Entering closed road prohibited.

  1. The highway patrol or local law enforcement authorities having jurisdiction over a road may close a road temporarily due to hazardous conditions for the protection and safety of the public. If such a closing is made, the authority ordering the closing shall make every reasonable attempt to notify the public and, when practical, may post appropriate official traffic-control devices to advise motorists of the closing.
  2. An individual, while operating a motor vehicle, may not knowingly enter a road closed which is posted with an appropriate traffic-control device at the point of entry.

Source:

S.L. 1985, ch. 436, § 2; 1989, ch. 470, § 1; 2011, ch. 280, § 2.

39-10-22. Vehicle approaching or entering intersection.

  1. If a vehicle approaches or enters an intersection that does not have an official traffic-control device and another vehicle approaches or enters from a different highway at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right. If the intersection is T-shaped and does not have an official traffic-control device, the driver of the vehicle on the terminating street or highway shall yield to the vehicle on the continuing street or highway.
  2. If a vehicle approaches an intersection that has traffic-control signals that usually exhibit different colored lights and the signals are not lit, the driver of the vehicle shall stop and yield as required under subsection 2 of section 39-10-24.
  3. The right-of-way rule declared in this section is modified at through highways and otherwise as stated in this chapter.

Source:

S.L. 1955, ch. 237, § 23; R.C. 1943, 1957 Supp., § 39-1022; S.L. 1963, ch. 283, § 20; 1969, ch. 344, § 1; 1975, ch. 349, § 24; 1995, ch. 381, § 1; 2007, ch. 331, § 1.

Notes to Decisions

Assumption of Right of Way.

The driver of a vehicle approaching an intersection has a right to assume that the driver of a second vehicle, likewise approaching the intersection, will observe the law of the road. Pederson v. O'Rourke, 54 N.D. 428, 209 N.W. 798, 1926 N.D. LEXIS 164 (N.D. 1926); Braaten v. Grabinski, 77 N.D. 422, 43 N.W.2d 381, 1950 N.D. LEXIS 138 (N.D. 1950); Umland v. Frendberg, 63 N.W.2d 295, 1954 N.D. LEXIS 68 (N.D. 1954); Lusty v. Ostlie, 71 N.W.2d 753, 1955 N.D. LEXIS 130 (N.D. 1955).

Duty of Driver Having Right of Way.

The possession of the right of way by the driver of a vehicle does not absolve him of the necessity of exercising due care, but he has a right to assume that the driver of the less favored vehicle will obey the law. Zettle v. Lutovsky, 72 N.D. 331, 7 N.W.2d 180, 1942 N.D. LEXIS 147 (N.D. 1942).

Where negligence must be proved in an automobile case, it is not sufficient to have right of way or to rely upon presumption that everyone will obey rules of the road since, even if driver has right of way, he may not fully disregard other cars on highway and has duty to avoid collision with another automobile even if such automobile is violating rules of road. Thompson v. Nettum, 163 N.W.2d 91, 1968 N.D. LEXIS 97 (N.D. 1968).

In an action involving a collision at an uncontrolled intersection, where there was no evidence showing any negligence on the part of the plaintiff and no evidence of circumstances from which he should have concluded that the defendant did not intend to yield the right of way, it was not error for the trial court to refuse to instruct pertaining to the duty of a driver having the directional right of way. Munro v. Privratsky, 209 N.W.2d 745, 1973 N.D. LEXIS 144 (N.D. 1973).

Entry of Vehicles at “Approximately the Same Time”.

Where the evidence showed that the plaintiff, a nine-year-old bicycle rider, was struck by defendant’s automobile in the middle of an intersection, it indicated that the bicycle had been in the intersection an appreciable length of time ahead of the automobile and this section was inapplicable. Kleinjan v. Knutson, 207 N.W.2d 247, 1973 N.D. LEXIS 174 (N.D. 1973).

In an action arising out of a collision of a truck and an automobile at an unobstructed intersection of two gravel, nonarterial roads, where the automobile was on the right of the truck and the vehicles reached the intersection at approximately the same time, evidence sustained a finding that the truck driver, irrespective of the other driver’s lookout, could have yielded the right of way and was negligent in failing to do so. Greene v. Werven, 275 F.2d 134, 1960 U.S. App. LEXIS 5331 (8th Cir. N.D. 1960).

Exception to Assumption of Right of Way.

The right of way given by an ordinance to a vehicle approaching an intersection from the right is not absolute, and gives precedence only against a vehicle approaching from the left which, with due regard to other rules of the road, will not pass the intersection first. Pederson v. O'Rourke, 54 N.D. 428, 209 N.W. 798, 1926 N.D. LEXIS 164 (N.D. 1926).

The driver of a favored vehicle may not continue to rely on the assumption that he will be given the right of way after circumstances develop from which a reasonable person would conclude that the driver of the approaching vehicle did not intend to yield the right of way. Zettle v. Lutovsky, 72 N.D. 331, 7 N.W.2d 180, 1942 N.D. LEXIS 147 (N.D. 1942).

Excessive Speed.

Where defendant drove his auto at an excessive rate of speed, and his windshield was covered with frost except for a small area immediately in front of the defendant, and the record shows defendant pleaded guilty to a charge of careless driving from the accident in question, the evidence was sufficient to support a finding of negligence on the part of such defendant even though defendant approached the intersection from the right. Heid v. Shafer, 140 N.W.2d 584, 1966 N.D. LEXIS 191 (N.D. 1966).

Where the plaintiff, as he was about to enter the intersection, observed the defendant’s auto some two hundred to three hundred feet from the intersection, such plaintiff had a right to assume the defendant was not approaching at an excessive rate of speed and that he, the plaintiff, had plenty of time to cross the intersection, and he was not negligent in making such assumptions. Heid v. Shafer, 140 N.W.2d 584, 1966 N.D. LEXIS 191 (N.D. 1966).

Right of Way As Fact Question.

Violation of right of way is issue for determination upon facts adduced during course of trial and is not a fact in and of itself; mere fact that motorist approached intersection from right of other motorist was insufficient in itself to place first motorist within provisions of statutory right-of-way rule: right of precedence is not absolute. Thompson v. Nettum, 163 N.W.2d 91, 1968 N.D. LEXIS 97 (N.D. 1968).

DECISIONS UNDER PRIOR LAW

Loss of Right of Way.

One who drove at an unlawful rate of speed thereby forfeited the right of way he might otherwise have had, but the loss of his right of way did not mean that the driver became a trespasser on the highway, nor did it mean that the right of way so lost was conferred upon the driver of another car. LOGAN v. SCHJELDAHL, 66 N.D. 152, 262 N.W. 463, 1935 N.D. LEXIS 181 (N.D. 1935); Marsden v. O'Callaghan, 77 N.W.2d 531, 1956 N.D. LEXIS 129 (N.D. 1956).

Collateral References.

Liability for accident arising from failure of motorist to give signal for left turn at intersection, as against oncoming or intersecting motor vehicle, 39 A.L.R.2d 65.

Passing at intersection, 53 A.L.R.2d 850.

Duty of vehicle driver approaching intersection of one-way street with other street, 62 A.L.R.2d 275.

What is a street or highway intersection within traffic rules, 7 A.L.R.3d 1204.

Liability of motorbus carrier or driver for death of, or injury to, discharged passenger struck by other vehicle, 16 A.L.R.5th 1.

39-10-22.1. Entering freeways — Right of way.

A vehicle entering a freeway, as defined in section 24-01-01.1, from an acceleration lane, ramp, or any other approach road shall yield the right of way to a vehicle on the main roadway entering the merging area at the same time, regardless of whether the approach road is to the left or the right of the main roadway, unless posted signs indicate otherwise.

Source:

S.L. 1983, ch. 438, § 1.

39-10-23. Vehicle turning left.

The driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.

Source:

S.L. 1955, ch. 237, § 24; R.C. 1943, 1957 Supp., § 39-1023; S.L. 1963, ch. 283, § 12; 1975, ch. 349, § 25.

Notes to Decisions

Exception to Assumption of Right of Way.

Right of way of the favored vehicle is not absolute; if vehicle on left enters intersection a sufficient interval ahead of vehicle on right to have ample time to clear the intersection safely, it is not negligence for vehicle on the left to proceed. Schuh v. Allery, 210 N.W.2d 96, 1973 N.D. LEXIS 110 (N.D. 1973).

Collateral References.

Liability for accident arising from motorist’s failure to give signal for left turn, 39 A.L.R.2d 15.

What is street or highway intersection within traffic rules, 7 A.L.R.3d 1204.

Liability for U-turn automobile collisions, 53 A.L.R.4th 849.

39-10-24. Stop signs and yield signs.

  1. Preferential right of way may be indicated by stop signs or yield signs as authorized in section 39-07-03.
  2. Except when directed to proceed by a police officer, every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line, or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it. After having stopped, the driver shall yield the right of way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time when such driver is moving across or within the intersection or junction of roadways.
  3. The driver of a vehicle approaching a yield sign shall in obedience to such sign slow down to a speed reasonable for the existing conditions and, if required for safety to stop, shall stop at a clearly marked stop line, or, if none, before entering the crosswalk on the near side of the intersection, or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it. After slowing or stopping, the driver shall yield the right of way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time such driver is moving across or within the intersection or junction of roadways. Provided, however, that if a driver is involved in a collision with a vehicle in the intersection or junction of roadways after driving past a yield sign without stopping, such collision is deemed prima facie evidence of the driver’s failure to yield the right of way.

Source:

S.L. 1955, ch. 237, § 25; R.C. 1943, 1957 Supp., § 39-1024; S.L. 1963, ch. 283, § 13; 1975, ch. 349, § 26.

Collateral References.

Sudden or unsignaled stop or slowing of motor vehicles, negligence as to crossing vehicle, 29 A.L.R.2d 5.

Duty of motor vehicle driver approaching place where children are crossing or about to cross, 30 A.L.R.2d 5.

Custom and practice of drivers of motor vehicles as affecting question of negligence at intersections, 77 A.L.R.2d 1327.

Stop-and-go signal, liability for automobile accident other than direct collision with pedestrian as affected by reliance upon or disregard of, 2 A.L.R.3d 12.

Stop-and-go signal, liability for collision of automobile with pedestrian at intersection as affected by reliance upon or disregard of, 2 A.L.R.3d 155.

Yield sign: liability for automobile accident at intersection as affected by reliance upon or disregard of “yield” sign or signal, 2 A.L.R.3d 275.

Stop signal or sign, liability for automobile accident at intersection as affected by reliance upon or disregard of unchanging, 3 A.L.R.3d 180.

Sign or signal other than stop-and-go signal, liability for collision of automobile with pedestrian at intersection as affected by reliance upon or disregard of, 3 A.L.R.3d 557.

Intersection: what is a street or highway intersection within traffic rules, 7 A.L.R.3d 1204.

Public authorities: liability of highway authorities arising out of motor vehicle accident allegedly caused by failure to erect or properly maintain traffic control device at intersection, 34 A.L.R.3d 1008.

Liability for U-turn automobile collisions, 53 A.L.R.4th 849.

Notes to Decisions

Articulable and Reasonable Suspicion.

District court did not err in refusing to give defendant’s requested jury instruction under N.D.C.C. § 39-20-14(1) because he failed to raise the requirements for the initial traffic stop in an appropriate pretrial motion and thus, waived the issue; the failure to charge defendant with refusing to submit to an onsite screening test was irrelevant to the validity of the stop, which turned on whether the officer had an articulable and reasonable suspicion he was violating the law for failure to stop. State v. Taylor, 2018 ND 132, 911 N.W.2d 905, 2018 N.D. LEXIS 147 (N.D. 2018).

39-10-25. Vehicle entering roadway.

The driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.

Source:

S.L. 1955, ch. 237, § 26; R.C. 1943, 1957 Supp., § 39-1025; S.L. 1963, ch. 264, § 8; 1975, ch. 349, § 27.

DECISIONS UNDER PRIOR LAW

Finding As to Negligence.

Finding that plaintiff driver was not guilty of contributory negligence proximately causing accident in which a following vehicle struck her from behind was not clearly erroneous in view of evidence that plaintiff started slowing and activated turn signal 900 feet before intended left turn, gently applied brakes, and was struck while she was still in right lane and before she started the turn. Nitschke v. Barnick, 226 N.W.2d 785 (N.D. 1975). Decision rendered prior to enactment of comparative fault statute.

Collateral References.

Passing at intersection of private way, 53 A.L.R.2d 850.

Backing into highway or street from private way, 63 A.L.R.2d 108.

39-10-26. Vehicle to stop or yield the right of way for authorized emergency vehicle or vehicle used for maintaining the state highway system — Penalty.

  1. Upon the immediate approach of an authorized emergency vehicle displaying a visible flashing, revolving, or rotating blue, white, or red light, the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in that position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.
  2. If an authorized emergency vehicle is parked or stopped at the scene of an emergency and is displaying a flashing, revolving, or rotating blue, white, or red light, approaching traffic shall move to the right-hand edge or curb of the roadway and shall stop, but once having stopped, traffic may proceed past the scene at its own risk when the roadway is clear, except when otherwise directed by a police officer. If an authorized emergency vehicle is otherwise parked or stopped on the interstate system, or on a multilane highway outside the limits of a city, and the authorized emergency vehicle is displaying a flashing, revolving, or rotating amber, blue, white, or red light, the driver of an approaching vehicle shall proceed with caution and yield the right of way by moving to a lane that is not adjacent to the authorized emergency vehicle if the move may be made with due regard to safety and traffic conditions or if not, the driver shall proceed with due caution, reduce the speed of the vehicle, and maintain a safe speed for the road conditions.
  3. If a vehicle operated by or under the control of the director used for maintaining the state highway system is parked or stopped on the interstate system or on a multilane highway outside the limits of a city, and the vehicle is displaying a flashing, revolving, or rotating amber or white light, the driver of an approaching vehicle shall proceed with caution and yield the right of way by moving to a lane that is not adjacent to the vehicle if the move may be made with due regard to safety and traffic conditions or if not, the driver shall proceed with due caution, reduce the speed of the vehicle, and maintain a safe speed for the road conditions.
  4. This section does not operate to relieve the driver of an authorized emergency vehicle or a vehicle operated by or under the control of the director used for maintaining the state highway system from the duty to drive with due regard for the safety of all persons using the highway.
    1. Any individual who violates subsection 2 and causes an accident with an authorized emergency vehicle while the authorized emergency vehicle is displaying a visible flashing, revolving, or rotating amber, blue, white, or red light is guilty of an infraction.
    2. An individual who violates subsection 3 and causes an accident with a vehicle operated by or under the control of the director used for maintaining the state highway system while the vehicle is displaying a visible flashing, revolving, or rotating amber or white light is guilty of an infraction.

Source:

S.L. 1955, ch. 237, § 27; R.C. 1943, 1957 Supp., § 39-1026; S.L. 1959, ch. 288, § 3; 1975, ch. 347, § 9; 1999, ch. 350, § 1; 2001, ch. 350, § 1; 2003, ch. 318, § 4; 2009, ch. 331, § 4; 2021, ch. 283, § 11, effective August 1, 2021.

Collateral References.

Construction and application of statutory provision requiring motorists to yield right-of-way to emergency vehicle, 87 A.L.R.5th 1.

39-10-26.1. Highway construction and maintenance.

  1. The driver of a vehicle shall yield the right of way to any authorized vehicle or pedestrian actually engaged in work upon a highway within any highway construction or maintenance area indicated by official traffic-control devices.
  2. The driver of a vehicle shall yield the right of way to any authorized vehicle obviously and actually engaged in work upon a highway wherever such vehicle displays flashing lights meeting the requirements of section 39-21-28.

Source:

S.L. 1975, ch. 347, § 10.

39-10-26.2. Permitting use of vehicle to violate section 39-10-26 prohibited — Presumption of permission — Defense — Dual prosecution prohibited.

The registered owner of a motor vehicle may not permit that motor vehicle to be operated in violation of section 39-10-26. If a motor vehicle is seen violating section 39-10-26, it is a disputable presumption that the registered owner of the motor vehicle permitted that violation. It is a defense to a charge of violating this section that the registered owner of the vehicle was not operating the vehicle, if that registered owner identifies the person authorized by that owner to operate the motor vehicle at the time of the violation of section 39-10-26, or if that motor vehicle had been taken without the registered owner’s permission. A person may not be charged both with violating this section and with violating section 39-10-26. Violation of this section is not a lesser included offense of violation of section 39-10-26.

Source:

S.L. 1999, ch. 343, § 2.

39-10-27. Pedestrian obedience to traffic-control devices and traffic regulations.

  1. A pedestrian shall obey the instructions of any official traffic-control device specially applicable to the pedestrian, unless otherwise directed by a police officer.
  2. Pedestrians are subject to traffic-control and pedestrian-control signals as provided for in sections 39-10-05 and 39-10-06.

Source:

S.L. 1955, ch. 237, § 28; R.C. 1943, 1957 Supp., § 39-1027; S.L. 1975, ch. 347, § 11.

Collateral References.

Collision with pedestrian due to swaying or swinging of motor vehicle or trailer, 1 A.L.R.2d 167.

Liability for injury to pedestrian from vehicle moving from parking space, 29 A.L.R.2d 107.

Liability for injury to pedestrian incident to towing automobile as affected by contributory negligence, 30 A.L.R.2d 1019.

Stop-and-go signal, liability for collision of automobile with pedestrian at intersection as affected by reliance upon or disregard of, 2 A.L.R.3d 155.

Signal or sign other than stop-and-go signal, liability for collision of automobile with pedestrian at intersection as affected by reliance upon or disregard of, 3 A.L.R.3d 557.

Failure to comply with statute regulating travel by pedestrian along highway as affecting right to recover for injuries or death resulting from collision with automobile, 45 A.L.R.3d 658.

Modern trends as to contributory negligence of children, 32 A.L.R.4th 56.

Who is “pedestrian” entitled to rights and subject to duties provided by traffic regulations or judicially stated, 35 A.L.R.4th 1117.

39-10-28. Pedestrian’s right of way in crosswalk.

  1. When traffic-control signals are not in place or not in operation, the driver of a vehicle shall yield the right of way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger.
  2. No pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close as to constitute an immediate hazard.
  3. Subsection 1 does not apply under the conditions stated in subsection 2 of section 39-10-29.
  4. Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the highway, the driver of any other vehicle approaching from the rear may not overtake and pass such stopped vehicle.

Source:

S.L. 1955, ch. 237, § 29; R.C. 1943, 1957 Supp., § 39-1028; S.L. 1975, ch. 349, § 28.

Notes to Decisions

Duty of Pedestrian.

A pedestrian, though given the right of way at all times at a crossing, is not absolved from exercising due care. CLARK v. FELDMAN, 57 N.D. 741, 224 N.W. 167, 1929 N.D. LEXIS 321 (N.D. 1929), explained, State Worker's Comp. Fund v. Yellow Cab Co., 62 N.D. 733, 245 N.W. 382 (1932).

Evidence of Jaywalking.

Where question whether pedestrian struck by defendant’s automobile had crossed street at crosswalk or had jaywalked while returning from church was critical issue and where there were no witnesses to occurrence other than parties whose testimony was in conflict, evidence that pedestrian had been in habit of crossing street, in returning from church, at point east of crosswalk should have been admitted for consideration by jury as tending to corroborate evidence of motorist, and its exclusion from evidence was prejudicial error; where evidence of habit is offered on issue of negligence, it must be limited to conduct which constitutes person’s regular practice of meeting particular situation with specific conduct, thus showing that doing such act and conduct of person in meeting certain situation was practically automatic; it must not be too remote in time or place from the events under investigation. Glatt v. Feist, 156 N.W.2d 819, 1968 N.D. LEXIS 124 (N.D. 1968).

Jury Instructions.

Where jury instructions in wrongful death action included a quotation of subsection (2) of this section, it was error for trial court to fail to give an instruction based upon N.D.C.C. § 39-10-30. Willert v. Nielsen, 146 N.W.2d 26, 1966 N.D. LEXIS 116 (N.D. 1966).

Jury Question.

Where evidence showed that pedestrian took approximately one step into eastbound lane of traffic when he was struck, whether pedestrian negligently left a place of safety and was as equally negligent as driver was a factual determination to be made by the jury. Marohl v. Osmundson, 462 N.W.2d 145, 1990 N.D. LEXIS 209 (N.D. 1990).

Collateral References.

Duty and liability with respect to giving audible signal on approaching pedestrian, 24 A.L.R.3d 183.

39-10-29. Crossing at other than crosswalk.

  1. Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.
  2. Any pedestrian crossing a roadway at a point where a pedestrian tunnel or overhead pedestrian crossing has been provided shall yield the right of way to all vehicles upon the roadway.
  3. Between adjacent intersections at which traffic-control devices are in operation, pedestrians may not cross at any place except in a marked crosswalk.
  4. No pedestrian may cross a roadway intersection diagonally unless authorized by official traffic-control devices; and, when authorized to cross diagonally, pedestrians shall cross only in accordance with the official traffic-control devices pertaining to such crossing movements.

Source:

S.L. 1955, ch. 237, § 30; R.C. 1943, 1957 Supp., § 39-1029; S.L. 1975, ch. 347, § 12.

Notes to Decisions

Duty of Continuous Observation.

A pedestrian crossing elsewhere than at a crossing has the duty of continuous observation. CLARK v. FELDMAN, 57 N.D. 741, 224 N.W. 167, 1929 N.D. LEXIS 321 (N.D. 1929), explained, State Worker's Comp. Fund v. Yellow Cab Co., 62 N.D. 733, 245 N.W. 382 (1932); State Worker's Comp. Fund v. Yellow Cab Co., 62 N.D. 733, 245 N.W. 382 (1932).

Evidence of Jaywalking.

Where question whether pedestrian struck by defendant’s automobile had crossed street at crosswalk or had jaywalked while returning from church was critical issue and where there were no witnesses to occurrence other than parties whose testimony was in conflict, evidence that pedestrian had been in habit of crossing street, in returning from church, at point east of crosswalk should have been admitted for consideration by jury as tending to corroborate evidence of motorist, and its exclusion from evidence was prejudicial error; where evidence of habit is offered on issue of negligence, it must be limited to conduct which constitutes person’s regular practice of meeting particular situation with specific conduct, thus showing that doing such act and conduct of person in meeting certain situation was practically automatic; it must not be too remote in time or place from the events under investigation. Glatt v. Feist, 156 N.W.2d 819, 1968 N.D. LEXIS 124 (N.D. 1968).

Instructions.

Instruction that “a pedestrian must exercise ordinary care at all times in crossing a street, whether crossing at a crosswalk or at any other point on the street”, while technically correct, could have misled jury into concluding that no greater diligence or caution was required of plaintiff in exercising ordinary care while crossing in middle of block than would be required of her when crossing at a pedestrian crossing, and thus was erroneous as not relating the degree of caution to the circumstances. Glatt v. Feist, 156 N.W.2d 819, 1968 N.D. LEXIS 124 (N.D. 1968).

Collateral References.

Application of “assured clear distance ahead” or “radius of lights” doctrine to accident involving pedestrian crossing street or highway, 31 A.L.R.2d 1424.

39-10-30. Driver to exercise due care.

Notwithstanding other provisions of this chapter or the provisions of any local ordinance, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused, incapacitated, or intoxicated person.

Source:

S.L. 1955, ch. 237, § 31; R.C. 1943, 1957 Supp., § 39-1030; S.L. 1975, ch. 349, § 29.

Cross-References.

Care required in operating vehicles, see §§ 39-09-01, 39-09-01.1.

Notes to Decisions

Duty of Continuous Observation.

A driver has a duty to exercise the due care to avoid colliding with a pedestrian and to refrain from moving a parked vehicle or backing a vehicle until it can be safely accomplished. Ganzer v. Woodbury, 427 N.W.2d 353, 1988 N.D. LEXIS 183 (N.D. 1988).

39-10-31. Protection of blind or incapacitated pedestrians. [Repealed]

Repealed by S.L. 1975, ch. 347, § 25.

39-10-32. Pedestrians to use right half of crosswalks.

Pedestrians shall move, whenever practicable, upon the right half of crosswalks.

Source:

S.L. 1955, ch. 237, § 33; R.C. 1943, 1957 Supp., § 39-1032.

39-10-33. Pedestrian on roadway.

  1. Where a sidewalk is provided and its use is practicable, it is unlawful for any pedestrian to walk along and upon an adjacent roadway.
  2. Where a sidewalk is not available, any pedestrian walking along and upon a highway shall walk only on a shoulder, as far as practicable from the edge of the roadway.
  3. Where neither a sidewalk nor a shoulder is available, any pedestrian walking along and upon a highway shall walk as near as practicable to an outside edge of the roadway, and, if on a two-way roadway, shall walk only on the left side of the roadway.
  4. Except as otherwise provided for in this chapter, any pedestrian upon a roadway shall yield the right of way to all vehicles upon the roadway.

Source:

S.L. 1955, ch. 237, § 34; R.C. 1943, 1957 Supp., § 39-1033; S.L. 1975, ch. 347, § 13.

39-10-33.1. Pedestrian’s right of way on sidewalk.

The driver of a vehicle shall yield the right of way to any pedestrian on a sidewalk.

Source:

S.L. 1975, ch. 347, § 14.

39-10-33.2. Pedestrian to yield to authorized emergency vehicles.

  1. Upon the immediate approach of an authorized emergency vehicle making use of an audible signal by bell, siren, or exhaust whistle and displaying a visible flashing, revolving, or rotating blue, white, or red light, every pedestrian shall yield the right of way to the authorized emergency vehicle.
  2. This section does not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway nor from the duty to exercise due care to avoid colliding with any pedestrian.

Source:

S.L. 1975, ch. 347, § 15.

39-10-33.3. Blind pedestrian right of way.

The driver of a vehicle shall yield the right of way to an individual who is blind or visually impaired and carrying a clearly visible white cane or to an individual with a disability who is accompanied by an assistance dog.

Source:

S.L. 1975, ch. 347, § 16; 2001, ch. 258, § 6.

39-10-33.4. Pedestrian under influence of alcohol or drugs.

A pedestrian who is under the influence of alcohol or any drug to a degree which renders the pedestrian a hazard may not walk or be upon a roadway.

Source:

S.L. 1975, ch. 347, § 17.

39-10-33.5. Bridge and railroad signals.

No pedestrian may pass through, around, over, or under any crossing gate or barrier at a railroad grade crossing or bridge while such gate or barrier is closed or is being opened or closed.

Source:

S.L. 1975, ch. 347, § 18.

39-10-34. Pedestrian soliciting ride or business.

  1. No person may stand in a roadway for the purpose of soliciting a ride.
  2. No person may stand in a roadway for the purpose of soliciting employment, business, or contributions from the occupant of any vehicle.
  3. No person may stand on or in proximity to a street or highway for the purpose of soliciting the watching or guarding of any vehicle while parked or about to be parked on a street or highway.

Source:

S.L. 1955, ch. 237, § 35; R.C. 1943, 1957 Supp., § 39-1034; S.L. 1963, ch. 264, § 9; 1975, ch. 347, § 19.

Collateral References.

Anti-hitchhiking laws, their construction and effect in action for injury to hitchhiker, 68 A.L.R.2d 300.

39-10-35. Required position and method of turning.

The driver of a vehicle intending to turn shall do so as follows:

  1. Right turns. Both the approach for a right turn and a right turn must be made as close as practicable to the right-hand curb or edge of the roadway.
  2. Left turns. The driver of a vehicle intending to turn left shall approach the turn in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle. Whenever practicable, the left turn must be made to the left of the center of the intersection and so as to leave the intersection or other location in the extreme left-hand lane lawfully available to traffic moving in the same direction as such vehicle on the roadway being entered.
  3. The director and local authorities in their respective jurisdictions may cause official traffic-control devices to be placed and thereby require and direct that a different course from that specified in this section be traveled by turning vehicles, and when such devices are so placed, no driver of a vehicle may turn it other than as directed and required by such devices.

Source:

S.L. 1955, ch. 237, § 36; R.C. 1943, 1957 Supp., § 39-1035; S.L. 1975, ch. 347, § 20.

Notes to Decisions

Instruction in Language of Statute.

An instruction in the former words of the statute that “after entering the intersection the left turn shall be made so as to leave the intersection to right of the center line of the roadway being entered” was proper, even though the street into which plaintiff driver was entering had vehicles parked only on the right side thereof. Mills v. Roggensack, 92 N.W.2d 722, 1958 N.D. LEXIS 94 (N.D. 1958).

Collateral References.

Sudden or unsignaled stop or slowing of motor vehicle as negligence as to crossing vehicle, 29 A.L.R.2d 5.

Duty of motor vehicle driver approaching place where children are crossing or are about to cross, 30 A.L.R.2d 5.

Violation of statute by motorist’s failure to give signal for a left turn at intersection with respect to motor vehicle proceeding in same direction, 39 A.L.R.2d 15.

Failure of motorist to give signal for left turn at intersection, as against oncoming or intercepting motor vehicle, liability for accident arising from, 39 A.L.R.2d 65.

Failure of motorist to give signal for left turn between intersections, liability for accident arising from, 39 A.L.R.2d 103.

What amounts to reckless driving of motor vehicle within statute making such a criminal offense, 52 A.L.R.2d 1337.

Custom or practice of drivers of motor vehicles as affecting question of negligence as regards right of way at intersections, 77 A.L.R.2d 1327.

Intersection: what is street or highway intersection within traffic rules, 7 A.L.R.3d 1204.

Liability of motorist who left key in ignition for damage or injury caused by stranger operating the vehicle, 45 A.L.R.3d 787.

Automobiles: liability for U-turn collisions, 53 A.L.R.4th 849.

Liability for personal injury or property damage caused by unauthorized use of automobile which has been parked with keys removed from ignition, 70 A.L.R.4th 276.

39-10-36. Limitations on turning around.

  1. The driver of any vehicle may not turn such vehicle so as to proceed in the opposite direction unless such movement can be made in safety and without interfering with other traffic.
  2. No vehicle may be turned so as to proceed in the opposite direction upon any curve, or upon the approach to or near the crest of a grade, where such vehicle cannot be seen by the driver of any other vehicle approaching from either direction within five hundred feet [152.4 meters].

Source:

S.L. 1955, ch. 237, § 37; R.C. 1943, 1957 Supp., § 39-1036; S.L. 1975, ch. 347, § 21.

Collateral References.

Automobiles: liability for U-turn collisions, 53 A.L.R.4th 849.

39-10-37. Starting parked vehicle.

No person may start a vehicle which is stopped, standing, or parked unless and until such movement can be made with reasonable safety.

Source:

S.L. 1955, ch. 237, § 38; R.C. 1943, 1957 Supp., § 39-1037.

Notes to Decisions

Duty of Continuous Observation.

A driver has a duty to exercise the due care to avoid colliding with a pedestrian and to refrain from moving a parked vehicle or backing a vehicle until it can be safely accomplished. Ganzer v. Woodbury, 427 N.W.2d 353, 1988 N.D. LEXIS 183 (N.D. 1988).

Collateral References.

Liability for injury or damage caused by accidental starting up of parked motor vehicle, 43 A.L.R.3d 930, 55 A.L.R.3d 1254.

39-10-38. Turning movements and required signals.

  1. No person may turn a vehicle, move right or left upon a roadway, or merge into or from traffic unless and until such movement can be made with reasonable safety without giving an appropriate signal in the manner hereinafter provided.
  2. A signal of intention to turn, move right or left, or merge into or from traffic must be given continuously during not less than the last one hundred feet [30.48 meters] traveled by the vehicle before turning, moving right or left, or changing lanes.
  3. No person may stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.
  4. The signals required on vehicles by subsection 2 of section 39-10-39 may not be flashed on one side only on a disabled vehicle, flashed as a courtesy or “do pass” signal to operators of other vehicles approaching from the rear, nor be flashed on one side only of a parked vehicle except as may be necessary for compliance with this section.

Source:

S.L. 1955, ch. 237, § 39; R.C. 1943, 1957 Supp., § 39-1038; S.L. 1975, ch. 347, § 22; 2021, ch. 283, § 12, effective August 1, 2021.

Notes to Decisions

Appropriateness of Signal.

Whether the driver of a lead vehicle had warned the driver of a vehicle following closely behind, by appropriate signal, of his intention to stop or suddenly decrease his speed was a question for the jury and it is to be noted that the giving of a signal is not, in itself, a sufficient statutory compliance, but that it must be an “appropriate” signal. Johnson v. Hill, 274 F.2d 110, 1960 U.S. App. LEXIS 5578 (8th Cir. N.D. 1960).

Duty to Signal.

Officer had reasonable suspicion to stop defendant because, even if mistaken about turn signal usage, the officer could have reached an objectively reasonable conclusion that exiting a roundabout constituted a movement requiring a signal, thus providing the reasonable suspicion necessary to justify the stop. City of Lincoln v. Schuler, 2021 ND 123, 962 N.W.2d 413, 2021 N.D. LEXIS 125 (N.D. 2021).

Duty to Signal.

The trial court erroneously refused requested instruction on the duty of a driver to appropriately signal a sudden stop or decrease in speed. Although the trial court gave an instruction on brake lights which encompassed N.D.C.C. §§ 39-21-06(1) and 39-21-19(1), and, although the trial court instructed that ordinary care was required in operating a motor vehicle, it did not instruct on the duty to signal before a stop, as requested. While the violation of a statutory duty is not negligence per se, it is evidence of negligence. Gronneberg v. Hoffart, 466 N.W.2d 809, 1991 N.D. LEXIS 42 (N.D. 1991).

District court erred in suppressing evidence obtained from a traffic stop because defendant committed a traffic violation, giving a deputy reasonable suspicion to justify the traffic stop; the deputy observed defendant fail to signal when exiting an alley qualifying as a roadway, and the alley qualified as a roadway because it was a publicly maintained way improved, designed, or ordinarily used for vehicular travel, requiring defendant to signal prior to exiting the alley. State v. Hirschkorn, 2016 ND 117, 881 N.W.2d 244, 2016 N.D. LEXIS 121 (N.D. 2016).

Interpretation.

Defendant’s interpretation of N.D.C.C. § 39-10-38(1) to permit a vehicle to turn left or right on a roadway without giving an appropriate signal if the turn can be made safely without signaling was rejected as it would prohibit any right or left turn upon a roadway unless and until the turn could be made safely without giving an appropriate signal and therefore would lead to the absurd result of not authorizing any “signaled” turns; N.D.C.C. § 39-10-38(1) is construed to mean that no person may turn a vehicle or move right or left upon a roadway without giving an appropriate signal and unless and until such turn or movement can be made with reasonable safety. State v. Fasteen, 2007 ND 162, 740 N.W.2d 60, 2007 N.D. LEXIS 159 (N.D. 2007).

Reading N.D.C.C. §§ 39-01-01(73) and 39-10-38(1) and the definition of highway at § 39-01-01(29) together, no person may turn a vehicle or move right or left upon that portion of a publicly maintained way improved, designed, or ordinarily used for vehicular travel without giving an appropriate signal; section 39-10-38(1) requires drivers to signal prior to exiting alleys when such alleys qualify as roadways under § 39-01-01(73). State v. Hirschkorn, 2016 ND 117, 881 N.W.2d 244, 2016 N.D. LEXIS 121 (N.D. 2016).

Under a concerted, harmonious interpretation, N.D.C.C. § 39-10-45 supplements rather than supplants N.D.C.C. § 39-10-38(1); Read together, §§ 39-10-38(1) and 39-10-45 require drivers to stop at specific distances before exiting alleys in addition to, but not exclusive of, requiring drivers on roadways to signal when appropriate. State v. Hirschkorn, 2016 ND 117, 881 N.W.2d 244, 2016 N.D. LEXIS 121 (N.D. 2016).

Legislature's failure to exempt drivers from the requirement to signal while exiting alleys when it specifically exempted drivers exiting alleys from other requirements is an indication of its intent not to do so with the signaling requirement. State v. Hirschkorn, 2016 ND 117, 881 N.W.2d 244, 2016 N.D. LEXIS 121 (N.D. 2016).

Jury Instructions.

The failure of the trial court to instruct the jury about the distance requirements of subsection (2) is not reversible error as affecting the substantial rights of the parties, where the court did instruct the jury on a driver’s duty to give an appropriate turn signal under subsection (1). Wolf v. Estate of Seright, 1997 ND 240, 573 N.W.2d 161, 1997 N.D. LEXIS 309 (N.D. 1997).

Stopping Signal.

Evidence in action arising out of rear-end collision presented factual question whether lead motorist who was uncertain if brake lights were working gave appropriate signal before stopping. Koland v. Johnson, 163 N.W.2d 330, 1968 N.D. LEXIS 95 (N.D. 1968).

Sudden-Emergency Doctrine.

Application of the sudden-emergency doctrine is well-settled. Gronneberg v. Hoffart, 466 N.W.2d 809, 1991 N.D. LEXIS 42 (N.D. 1991).

Where there was evidence that a “sudden emergency” arose when defendant braked unexpectedly to avoid hitting the pickup that he was following, but gave no warning of his sudden stop, the trial court erroneously refused requested jury instruction on sudden emergency. Gronneberg v. Hoffart, 466 N.W.2d 809, 1991 N.D. LEXIS 42 (N.D. 1991).

Working Order of Lights Required.

In sum, N.D.C.C. §§ 39-21-06, 39-21-19 and this section require stop lights on the rear of each vehicle to be brake-activated, to be in working order, and to be used. Gronneberg v. Hoffart, 466 N.W.2d 809, 1991 N.D. LEXIS 42 (N.D. 1991).

Collateral References.

Construction and operation of regulations as to sudden stop or slowing of motor vehicle, 29 A.L.R.2d 5.

Liability for accident arising out of motorist’s failure to give signal for right turn, 38 A.L.R.2d 143.

Failure of motorist to give signal for a left turn between intersections, liability for accident arising from, 39 A.L.R.2d 103.

What amounts to reckless driving of motor vehicle within statute making such a criminal offense, 52 A.L.R.2d 1337.

39-10-39. Signals by hand and arm or signal lamps.

  1. Any stop or turn signal when required herein must be given either by means of the hand and arm or by signal lamps, except as otherwise provided in subsection 2.
  2. Any motor vehicle in use on a highway must be equipped with, and required signals must be given by, signal lamps when the distance from the center of the top of the steering post to the left outside limit of the body, cab, or load of such motor vehicle exceeds twenty-four inches [60.96 centimeters], or when the distance from the center of the top of the steering post to the rear limit of the body or load thereof exceeds fourteen feet [4.27 meters]. The latter measurement applies to any single vehicle and to any combination of vehicles.

Source:

S.L. 1955, ch. 237, § 40; R.C. 1943, 1957 Supp., § 39-1039; S.L. 1963, ch. 283, § 14; 1975, ch. 349, § 30.

Notes to Decisions

Appropriateness of Signal.

Whether the driver of a lead vehicle had warned the driver of a vehicle following closely behind, by appropriate signal, of his intention to stop or suddenly decrease his speed was a question for the jury and it is to be noted that the giving of a signal is not, in itself, a sufficient statutory compliance, but that it must be an “appropriate” signal. Johnson v. Hill, 274 F.2d 110, 1960 U.S. App. LEXIS 5578 (8th Cir. N.D. 1960).

Collateral References.

Negligence or contributory negligence of motorist in failing to proceed in accordance with turn signal given, 84 A.L.R.4th 124.

39-10-40. Method of giving hand-and-arm signals.

All signals herein required given by hand and arm must be given from the left side of the vehicle in the following manner and such signals must indicate as follows:

  1. Left turn: hand and arm extended horizontally.
  2. Right turn: hand and arm extended upward.
  3. Stop or decrease speed: hand and arm extended downward.

Source:

S.L. 1955, ch. 237, § 41; R.C. 1943, 1957 Supp., § 39-1040.

39-10-41. Obedience to signal indicating approach of train or other on-track equipment.

  1. When a vehicle approaches a railroad grade crossing under any of the circumstances stated in this section, the driver of the vehicle shall stop within fifty feet [15.24 meters] but not less than fifteen feet [4.57 meters] from the nearest rail of such railroad, and may not proceed until the driver can do so safely. These requirements apply when:
    1. A clearly visible electric or mechanical signal device gives warning of the immediate approach of a railroad train or other on-track equipment;
    2. A crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a railroad train or other on-track equipment;
    3. A railroad train or other on-track equipment approaching within approximately one thousand three hundred twenty feet [402.34 meters] of the highway crossing emits a signal audible from such distance and such railroad train or other on-track equipment, by reason of its speed or nearness to such crossing, is an immediate hazard; or
    4. An approaching railroad train or other on-track equipment is plainly visible and is in hazardous proximity to such crossing.
  2. A person may not drive a vehicle through, around, or under any crossing gate or barrier at a railroad crossing while the gate or barrier is closed or is being opened or closed. A person may not drive a vehicle past a human flagman at a railroad crossing until the flagman signals that the way is clear to proceed.

Source:

S.L. 1955, ch. 237, § 42; R.C. 1943, 1957 Supp., § 39-1041; 2019, ch. 326, § 1, effective August 1, 2019.

Collateral References.

Failure of occupants of motor vehicle stalled on railroad crossing to get out and move to place of safety as contributory negligence, 21 A.L.R.2d 742.

Road vehicle running into train or car standing in highway crossing, contributory negligence of driver of, 84 A.L.R.2d 813.

Failure of signaling device at crossing to operate as affecting liability of railroad for injury, 90 A.L.R.2d 350.

Liability or recovery in automobile negligence action arising out of collision or upset as affected by operation of vehicle without front lights, or with improper front lights, 62 A.L.R.3d 560.

Liability or recovery in automobile negligence action arising out of collision or upset as affected by operation of vehicle without or with improper taillights or rear reflectors, 62 A.L.R.3d 771.

Liability or recovery in automobile negligence action arising out of collision or upset as affected by operation of vehicle without, or with improper, clearance, load, or similar auxiliary lights, 62 A.L.R.3d 844.

39-10-42. All vehicles must stop at certain railroad grade crossings.

The department of transportation and local authorities, with respect to highways under their respective jurisdiction, are hereby authorized to designate particularly dangerous highway grade crossings of railroads and to erect stop signs thereat. When such stop signs are erected, the driver of any vehicle shall stop within fifty feet [15.24 meters] but not less than fifteen feet [4.57 meters] from the nearest rail of such railroad and shall proceed only upon exercising due care.

Source:

S.L. 1955, ch. 237, § 43; R.C. 1943, 1957 Supp., § 39-1042; S.L. 1975, ch. 349, § 31.

39-10-43. Certain vehicles must stop at all railroad grade crossings.

  1. The driver of a bus carrying passengers, or of a schoolbus, or of a vehicle carrying chlorine, empty or loaded cargo tank vehicles used to transport dangerous articles or any liquid having a flashpoint below two hundred degrees Fahrenheit [93.33 degrees Celsius], cargo tank vehicles transporting a commodity having a temperature above its flashpoint at the time of loading, certain cargo tank vehicles transporting commodities under special permits issued by the hazardous materials regulations board, and every motor vehicle which must have the following placards: “explosives”, “poison”, “flammable oxidizers”, “compressed gas”, “corrosives”, “flammable gas”, “radioactive”, or “dangerous”, before crossing at grade any track of a railroad, shall stop the vehicle within fifty feet [15.24 meters] but not less than fifteen feet [4.57 meters] from the nearest rail of the railroad and while stopped shall listen and look in both directions along the track for any approaching train or other on-track equipment, and for signals indicating the approach of a train or other on-track equipment and may not proceed until the driver can do so safely. After stopping as required and upon proceeding when safe to do so, the driver of the vehicle shall cross only in such gear of the vehicle that there will be no necessity for manually changing gears while traversing the crossing and the driver may not shift gears manually while crossing the track.
  2. A stop is not required at a crossing if traffic is controlled by a police officer. For the purposes of this section, a United States marshal is considered a police officer.
  3. A stop is not required at a crossing that the director has designated as an out-of-service crossing and which is clearly marked by signs bearing the words “Tracks out of service” or “Exempt” in conspicuous places on each side of the crossing.
  4. The designation must be limited to use at a crossing where track has been abandoned or its use discontinued.
  5. The director shall notify the road authority and any railway company of a crossing under the jurisdiction of that railway company which the director has designated as an out-of-service crossing under this section and the road authority shall erect signs bearing the words “Tracks out of service” or “Exempt” in conspicuous places on each side of the crossing.
  6. All signs must conform to the manual on uniform traffic-control devices as provided under section 39-13-06.

Source:

S.L. 1955, ch. 237, § 44; R.C. 1943, 1957 Supp., § 39-1043; S.L. 1961, ch. 206, § 2; 1963, ch. 264, § 10; 1975, ch. 347, § 23; 1977, ch. 360, § 1; 1989, ch. 471, § 1; 1991, ch. 424, § 2; 2003, ch. 328, § 1; 2019, ch. 326, § 2, effective August 1, 2019.

39-10-44. Stop signs and yield signs.

  1. Preferential right of way at an intersection may be indicated by stop signs or yield signs as authorized in section 39-07-03.
  2. Every stop sign and every yield sign must be erected as near as practicable to the nearest line of the crosswalk on the near side of the intersection or, if there is no crosswalk, then as near as practicable to the nearest line of the intersecting roadway.
  3. Except when directed to proceed by a police officer or traffic control signal, every driver of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the crosswalk on the near side of the intersection or, in the event there is no crosswalk, shall stop at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway.
  4. The driver of a vehicle approaching a yield sign if required for safety to stop shall stop before entering the crosswalk on the near side of the intersection or, in the event there is no crosswalk, at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway.

Source:

S.L. 1955, ch. 237, § 45; R.C. 1943, 1957 Supp., § 39-1044; S.L. 1963, ch. 283, § 15; 1965, ch. 277, § 1; 1985, ch. 437, § 1.

39-10-45. Emerging from alley, driveway, private road, or building.

The driver of a vehicle emerging from an alley, driveway, private road, or building within a business or residence district shall stop such vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across such alley, building entrance, road, or driveway, or in the event there is no sidewalk area, shall stop at the point nearest the street to be entered where the driver has a view of approaching traffic thereon.

Source:

S.L. 1955, ch. 237, § 46; R.C. 1943, 1957 Supp., § 39-1045; S.L. 1975, ch. 349, § 32.

Notes to Decisions

Traffic stop.

District court erred in suppressing evidence obtained from a traffic stop because the deputy's belief that the law required drivers to signal prior to exiting alleys was objectively reasonable; the courts had not interpreted the extent and interplay of the various statutory provisions. State v. Hirschkorn, 2016 ND 117, 881 N.W.2d 244, 2016 N.D. LEXIS 121 (N.D. 2016).

39-10-46. Overtaking and passing schoolbus.

  1. The driver of a vehicle meeting or overtaking from either direction any schoolbus stopped on the highway shall stop the vehicle before reaching the schoolbus when there is in operation on the schoolbus the flashing red lights or the stop sign on the control arm specified in section 39-21-18, and the driver may not proceed until the schoolbus resumes motion, the driver is signaled by the schoolbus driver to proceed, or the flashing red lights and the stop sign on the control arm are no longer actuated.
  2. Every schoolbus must bear upon the front and rear thereof plainly visible signs containing the word “SCHOOLBUS” in letters not less than eight inches [20.32 centimeters] in height. When a schoolbus is being operated upon a highway for purposes other than the actual transportation of children either to or from school or for a school-sanctioned activity, all markings thereon indicating “SCHOOLBUS” must be covered or concealed.
  3. The operator of a schoolbus equipped with amber caution lights may activate those lights at a distance of not less than three hundred feet [91.44 meters] nor more than five hundred feet [152.4 meters] from the point where schoolchildren are to be received or discharged from the bus.
  4. Every schoolbus must be equipped with a stop sign on a control arm and red visual signals meeting the requirements of section 39-21-18, which may only be actuated by the driver of the schoolbus whenever the vehicle is stopped on the highway to receive or discharge schoolchildren.
  5. The driver of a vehicle upon a highway with separate roadways need not stop upon meeting or passing a schoolbus which is on a different roadway or when upon a controlled-access highway and the schoolbus is stopped in a loading zone which is a part of or adjacent to such highway and where pedestrians are not permitted to cross the roadway.
  6. Every schoolbus must bear on the rear of the bus a plainly visible sign containing the words “THIS SCHOOLBUS STOPS AT ALL RAILROAD CROSSINGS”.

Source:

S.L. 1955, ch. 237, § 47; R.C. 1943, 1957 Supp., § 39-1046; S.L. 1963, ch. 283, § 16; 1975, ch. 349, § 33; 1983, ch. 439, § 1; 1987, ch. 473, § 1; 1989, ch. 471, § 2; 1997, ch. 341, § 1.

Note.

Section 5 of chapter 473, S.L. 1987, provides that the act does not require the installation of stop signs on control arms on schoolbuses in use before July 1, 1988.

39-10-46.1. Permitting use of vehicle to violate section 39-10-46 prohibited — Presumption of permission — Defense — Dual prosecution prohibited.

The registered owner of a motor vehicle may not permit that motor vehicle to be operated in violation of section 39-10-46. If a motor vehicle is seen violating section 39-10-46, it is a disputable presumption that the registered owner of the motor vehicle permitted that violation. It is a defense to a charge of violating this section that the registered owner of the vehicle was not operating the vehicle, if that registered owner identifies the person authorized by that owner to operate the motor vehicle at the time of the violation of section 39-10-46, or if that motor vehicle had been taken without the registered owner’s permission. A person may not be charged both with violating this section and with violating section 39-10-46. Violation of this section is not a lesser included offense of violation of section 39-10-46.

Source:

S.L. 1987, ch. 474, § 1; 1995, ch. 376, § 2.

39-10-47. Stopping, standing, or parking outside of business or residence districts.

  1. An individual may not stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of any highway if it is practicable to stop, park, or so leave the vehicle off the paved or main-traveled part of the highway. There must be an unobstructed width of the highway of not less than twelve feet [3.66 meters] opposite a standing vehicle left for the free passage of other vehicles and a clear view of any stopped vehicle must be available from a distance of not less than two hundred feet [60.96 meters] in each direction upon the highway.
  2. Unless the vehicle is blocking the highway or is otherwise endangering public safety, this section and sections 39-10-49 and 39-10-50 do not apply to the driver of a vehicle which is disabled while on the paved or main-traveled portion of a highway, if stopping and temporarily leaving the disabled vehicle is unavoidable.
  3. Without the consent of the owner or driver of a vehicle and if a vehicle or any personal property or cargo spilled from the vehicle is blocking the highway or is otherwise endangering public safety, a police officer may:
    1. Remove the vehicle or cause the vehicle to be removed from the highway; and
    2. Remove or cause to be removed any personal property or cargo that may have been spilled from the vehicle onto the highway.
  4. If reasonable care is used in the removal process, a police officer and the police officer’s employing agency, the department of transportation or an employee of the department of transportation, or a political subdivision or employee of a political subdivision authorized by a police officer is not liable in civil damages for loss or damage to any vehicle or to any personal property or cargo that may have spilled from a vehicle that is removed from a highway under this section.
  5. The decision and method used to remove a vehicle or any personal property, or cause a vehicle or any personal property to be removed, is a discretionary decision under this section. In the event of a public necessity, a police officer, an employee of the department of transportation, or an employee of a political subdivision authorized by a police officer may take an action that may damage a vehicle or property removed under this section.

Source:

S.L. 1955, ch. 237, § 48; R.C. 1943, 1957 Supp., § 39-1047; S.L. 1975, ch. 348, § 4; 2015, ch. 272, § 1, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 272, S.L. 2015 became effective August 1, 2015.

Notes to Decisions

Disabled Vehicles.

The law recognizes the right of a driver to stop on a highway in an emergency, so a burning taillight on an automobile on a highway does not necessarily indicate a moving vehicle and, when such a signal comes into view, it is reasonable to expect a driver approaching from the rear to ascertain whether the car is moving or standing before driving into the zone of danger. JONDAHL v. CAMPBELL, 61 N.D. 555, 238 N.W. 697, 1931 N.D. LEXIS 308 (N.D. 1931).

Evidence that a truck, which was abandoned on a highway during a snowstorm, could have been backed down a hill to a place of relative safety at the side of the road was sufficient to sustain the jury’s finding of negligence. Spenningsby v. Peterson, 67 N.W.2d 913, 1955 N.D. LEXIS 85 (N.D. 1955).

Overtaking Stopped Vehicle.

A vehicle temporarily stopped in a lane of traffic for vehicles proceeding in that direction is “proceeding” within the rule that the driver of any vehicle overtaking another proceeding in the same direction shall pass at a safe distance to the left thereof. Hutchinson v. Kinzley, 66 N.D. 25, 262 N.W. 251, 1935 N.D. LEXIS 167 (N.D. 1935).

Right to Stop Momentarily.

Where vehicle stopped momentarily while the driver reasonably determined whether a left turn could be made with safety, there was no violation of this section. Renschler v. Baltzer, 95 N.W.2d 574, 1959 N.D. LEXIS 75 (N.D. 1959).

Seizure of Evidence.

Trial court properly denied motion to suppress evidence of actual physical control of a vehicle while under the influence of alcohol, where patrol trooper had reasonable and articulable suspicion of a parking violation by defendant whose pickup was parked on a narrow exit-ramp of high-speed highway, in a way that partially blocked traffic, with its lights off. State v. Hawley, 540 N.W.2d 390, 1995 N.D. LEXIS 213 (N.D. 1995).

Stopping.

Where evidence showed that driver of a wrecker was negligent in failing to drive farther off the road before attempting to back up and turn around and that he was also negligent in failing to ascertain that the backward movement could be made with reasonable safety and without interfering with other traffic, the jury was justified in determining that the negligence of defendants was a proximate cause of death of plaintiff’s husband. Serbousek v. Stockman Motors, 106 N.W.2d 879, 1960 N.D. LEXIS 96 (N.D. 1960).

DECISIONS UNDER PRIOR LAW

Collision with Parked Vehicle.

Parking automobile partially on right side of unimproved, seldom traveled, township road on foggy, rainy night, leaving parking lights burning and leaving sufficient room for passage of other vehicles was not proximate cause of subsequent collision with automobile being driven at about fifty miles an hour by driver who failed to stop at two stop signs and who, although familiar with roads in area, had difficulty in locating junction of two highways and had not intended to drive onto township road and thus violation of statute did not preclude recovery by parked motorist. Hillius v. Wagner, 152 N.W.2d 468, 1967 N.D. LEXIS 84 (N.D. 1967).

Collateral References.

When is motor vehicle “disabled” or the like within exception to statute regulating parking or stopping, 15 A.L.R.2d 909.

Construction and effect in civil actions of statute, ordinance or regulation requiring vehicles to be stopped or parked parallel with, or within certain distance of, curb, 17 A.L.R.2d 582.

Construction and operation of regulations as to sudden stop or slowing of motor vehicle, 29 A.L.R.2d 5.

Liability for injury to pedestrian growing out of motor vehicle pulling out from parked position, 29 A.L.R.2d 107.

Right to park vehicles on private way, 37 A.L.R.2d 944.

Construction of statute as to parking or stopping motor vehicle on highway without flares, 67 A.L.R.2d 12.

Liability of owner or operator of automobile for injury to one assisting in extricating or starting his stalled or ditched car, 3 A.L.R.3d 780.

Liability of motorist colliding with person engaged about stalled or disabled vehicle on or near highway, 27 A.L.R.3d 12.

Last clear chance doctrine, applicability to collision between moving and stalled, parked or standing motor vehicle, 34 A.L.R.3d 570.

39-10-48. Officer authorized to remove illegally stopped vehicle.

  1. If a police officer finds a vehicle standing upon a highway in violation of section 39-10-47, the officer may remove the vehicle or require the driver or other person in charge of the vehicle to move the vehicle to a position off the paved or main-traveled part of the highway to a place where the vehicle does not block the highway or otherwise endanger public safety.
  2. If a police officer finds a vehicle unattended upon any highway and the vehicle may obstruct traffic or otherwise endanger public safety, the officer may have the vehicle moved to a location where it may be securely held.
  3. A police officer may remove or cause to be removed any vehicle found upon a highway and move the vehicle to any location where the vehicle may be securely held if:
    1. A report has been made the vehicle has been stolen or taken without the consent of its owner;
    2. The owner or driver of the vehicle is unable to provide for its custody or removal; or
    3. The individual driving or in control of the vehicle is arrested for an offense and taken into custody and another individual is not available to lawfully operate the vehicle.
  4. If a police officer finds a vehicle standing, stopped, or parked in a dangerous location or in violation of any official traffic-control device prohibiting or restricting the stopping, standing, or parking of any vehicle on state property, the officer shall place a written warning on the vehicle for the first offense and issue a traffic citation for a subsequent violation. However, a traffic citation may not be issued for a violation of this subsection occurring on the state capitol grounds during a legislative session.
  5. A police officer and the police officer’s employing agency, the department of transportation or an employee of the department of transportation, or a political subdivision or employee of a political subdivision authorized by a police officer is not liable in civil damages for loss or damage to any vehicle removed from a highway or state property under this section, so long as reasonable care is used in the removal process.
  6. The decision and method used to remove a vehicle or any personal property, or cause a vehicle or any personal property to be removed, is a discretionary decision under this section. In the event of a public necessity, a police officer, an employee of the department of transportation, or an employee of a political subdivision authorized by a police officer may take an action that may damage a vehicle or property removed under this section.

Source:

S.L. 1955, ch. 237, § 49; R.C. 1943, 1957 Supp., § 39-1048; S.L. 1975, ch. 348, § 5; 1981, ch. 379, § 4; 2015, ch. 272, § 2, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 2 of chapter 272, S.L. 2015 became effective August 1, 2015.

Collateral References.

State or municipal towing, impounding, or destruction of motor vehicles parked or abandoned on streets or highways, 32 A.L.R.4th 728.

39-10-49. Stopping, standing, or parking prohibited in specified places.

No person may stop, stand, or park a vehicle, except when necessary to avoid conflict with other traffic or in compliance with law or the directions of a police officer or traffic-control device, in any of the following places:

  1. On a sidewalk.
  2. In front of a public or private driveway.
  3. Within an intersection.
  4. Within ten feet [3.05 meters] of a fire hydrant.
  5. On a crosswalk.
  6. Within ten feet [3.05 meters] of a crosswalk at an intersection.
  7. Within fifteen feet [4.57 meters] upon the approach to any flashing beacon, stop sign, or traffic-control signal located at the side of a roadway.
  8. Between a safety zone and the adjacent curb or within fifteen feet [4.57 meters] of points on the curb immediately opposite the ends of a safety zone, unless the department or local authority indicates a different length by signs or markings.
  9. Within fifteen feet [4.57 meters] of the nearest rail of a railroad crossing.
  10. Within twenty feet [6.10 meters] of the driveway entrance to any fire station and on the side of a street opposite the entrance to any fire station within seventy-five feet [22.86 meters] of said entrance when properly signposted.
  11. Alongside or opposite any street excavation or obstruction when stopping, standing, or parking would obstruct traffic.
  12. On the roadway side of any vehicle stopped or parked at the edge or curb of a street.
  13. Upon any bridge or other elevated structure upon a highway or within a highway tunnel.
  14. At any place where official signs prohibit stopping.

No person shall move a vehicle not lawfully under the person’s control into any such prohibited area or away from a curb such distance as is unlawful.

Source:

S.L. 1955, ch. 237, § 50; R.C. 1943, 1957 Supp., § 39-1049.

Notes to Decisions

Search and Seizure.

If defendant was parked on an elevated structure, within the meaning of this section when the arresting officer approached defendant, then the officer had reasonable and articulable suspicion of criminal activity when he ordered defendant to exit his vehicle and the officer did not violate defendant’s Fourth Amendment rights. State v. Leher, 2002 ND 171, 653 N.W.2d 56, 2002 N.D. LEXIS 221 (N.D. 2002).

Collateral References.

Parking illegally at or near street corner or intersection as affecting liability for motor vehicle accident, 4 A.L.R.3d 324.

39-10-50. Additional parking regulations.

  1. Except as otherwise provided in this section, every vehicle stopped or parked upon a two-way roadway must be so stopped or parked with the right-hand wheels of such vehicle parallel to and within twelve inches [30.48 centimeters] of the right-hand curb or as close as practicable to the right edge of the right-hand shoulder.
  2. Except where otherwise provided by local ordinance, every vehicle stopped or parked upon a one-way roadway must be so stopped or parked parallel to the curb or edge of the roadway, in the direction of authorized traffic movement, with its right-hand wheels within twelve inches [30.48 centimeters] of the right-hand curb or as close as practicable to the right edge of the right-hand shoulder, or with its left-hand wheels within twelve inches [30.48 centimeters] of the left-hand curb or as close as practicable to the left edge of the left-hand shoulder.
  3. Local authorities may by ordinance permit angle parking on any roadway, except that angle parking is not permitted on any federal-aid or state highway without first obtaining the written authorization of the director.
  4. The department with respect to highways under its jurisdiction may place official traffic-control devices prohibiting or restricting the stopping, standing, or parking of vehicles on any highway where in its opinion such stopping, standing, or parking is dangerous to those using the highway or where the stopping, standing, or parking of vehicles would unduly interfere with the free movement of traffic thereon. No person may stop, stand, or park any vehicle in violation of the restrictions indicated by such devices.
  5. The department, with respect to streets, roadways, and parking areas of any state charitable or penal institution and on the state capitol grounds, may authorize the purchase and placement by the supervisory agency of official traffic-control devices prohibiting or restricting the stopping, standing, or parking of vehicles. The placement of signs pursuant to this section must be done when, in the department’s opinion, the stopping, standing, or parking is dangerous or would unduly interfere with the free movement of traffic, especially the free flow of traffic required for proper fire protection. No person may stop, stand, or park any vehicle in violation of the restriction indicated by any official traffic-control device. Any registered owner must be presumed to have been the operator of a vehicle that is parked in violation of any official traffic-control device prohibiting or restricting the stopping, standing, or parking of vehicles on any highway, state charitable or penal institution property, or on the state capitol grounds. This presumption may be rebutted by a showing of clear and convincing evidence to the contrary. However, no traffic citation may be issued for a violation of this subsection occurring on the state capitol grounds during a legislative session, except that a written warning must be placed on any vehicle for such a violation.

Source:

S.L. 1955, ch. 237, § 51; R.C. 1943, 1957 Supp., § 39-1050; S.L. 1975, ch. 348, § 6; 1981, ch. 379, § 5; 1991, ch. 592, § 13.

Collateral References.

Construction and effect in civil actions of statute, ordinance, or regulation requiring vehicles to be stopped or parked parallel with, and within certain distances of, curb, 17 A.L.R.2d 582.

39-10-50.1. Electric vehicle parking stalls or spaces — Unauthorized parking or obstructing.

  1. If a public or private entity designates a parking space for charging an electric vehicle, the reserved space must be indicated by a sign approved by the director. The sign must be consistent with the manual of uniform traffic control devices authorized under section 39-13-06, and indicate:
    1. Use of the reserved space is for charging electric vehicles only; and
    2. Unauthorized use of the spaces is a nonmoving violation for which a fee of fifty dollars must be imposed.
  2. An individual may not park or leave standing a vehicle in a stall or space designated for charging and parking a vehicle, unless the individual’s vehicle is connected for electric charging purposes.
  3. An individual may not obstruct, block, or otherwise bar access to a space designated for charging a vehicle.

Source:

S.L. 2019, ch. 327, § 1, effective August 1, 2019.

39-10-51. Unattended motor vehicle. [Repealed]

Source:

S.L. 1955, ch. 237, § 52; R.C. 1943, 1957 Supp., § 39-1051; repealed by 2019, ch. 318, § 2, effective August 1, 2019.

39-10-51.1. Parking violations — Lessor responsibility.

The registered owner of a motor vehicle stopped, stood, or parked in violation of this chapter or section 39-01-15 or an equivalent ordinance is not responsible for the violation if the owner furnishes an affidavit indicating that the vehicle was at the time of the violation in the care, custody, or control of another person pursuant to a lease or rental agreement. The affidavit must contain the name, address, and operator’s license number of the person to whom the vehicle was leased or rented at the time of the violation and must be submitted to the appropriate clerk of court within thirty days of notification to the owner of the violation. The owner is responsible for the violation and the payment of any fees or fines if the affidavit is not submitted within the thirty-day period.

Source:

S.L. 1991, ch. 425, § 1.

39-10-52. Limitations on backing.

  1. The driver of a vehicle may not back the same unless such movement can be made with safety and without interfering with other traffic.
  2. The driver of a vehicle may not back the same upon any shoulder or roadway of any controlled-access highway.

Source:

S.L. 1955, ch. 237, § 53; R.C. 1943, 1957 Supp., § 39-1052; S.L. 1975, ch. 349, § 34.

Notes to Decisions

Duty of Continuous Observations.

A driver has a duty to exercise the due care to avoid colliding with a pedestrian and to refrain from moving a parked vehicle or backing a vehicle until it can be safely accomplished. Ganzer v. Woodbury, 427 N.W.2d 353, 1988 N.D. LEXIS 183 (N.D. 1988).

Negligence.

Where evidence showed that driver of wrecker was negligent in failing to drive farther off the traveled portion of the highway before attempting to back up and turn around and that he was also negligent in failing to ascertain that the backward movement could be made with reasonable safety and without interfering with other traffic, the jury was justified in determining that the negligence of the defendants was a proximate cause of the death of plaintiff’s husband. Serbousek v. Stockman Motors, 106 N.W.2d 879, 1960 N.D. LEXIS 96 (N.D. 1960).

Collateral References.

Automobiles 169, 172(6).

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 246.

60A C.J.S. Motor Vehicles, § 602.

Liability for injury occasioned by backing of motor vehicle in public street or highway, 63 A.L.R.2d 5.

Liability for injury occasioned by backing of motor vehicle from private premises into public street or highway, 63 A.L.R.2d 108.

Liability for injury or damage occasioned by backing of motor vehicle within private premises, 63 A.L.R.2d 184.

Flares, backing accident due to lack of, 67 A.L.R.2d 12.

39-10-52.1. Driving upon sidewalk.

No person may drive any vehicle upon a sidewalk or sidewalk area except upon a permanent or duly authorized temporary driveway.

Source:

S.L. 1975, ch. 348, § 7.

39-10-52.2. Riding in housetrailer.

No person may be on or inside a housetrailer while it is being moved upon a public highway. Such prohibition does not apply to fifth-wheel vehicles, which are defined as mobile homes, mounted on single or tandem axles, coupled by a fifth-wheel hitch to and pivoting on a mount located immediately above or in front of the rear axle of a motor vehicle other than a passenger car.

Source:

S.L. 1975, ch. 348, § 8.

39-10-53. Riding on motorcycles. [Repealed]

Repealed by S.L. 1975, ch. 348, § 17.

Note.

For present provisions, see ch. 39-10.2.

39-10-54. Obstruction to driver’s view or driving mechanism.

  1. No person may drive a vehicle when it is so loaded, or when there are in the front seat such a number of persons, exceeding three, as to obstruct the view of the driver to the front or sides of the vehicle or as to interfere with the driver’s control over the driving mechanism of the vehicle.
  2. No passenger in a vehicle may ride in such position as to interfere with the driver’s view ahead or to the sides, or to interfere with the driver’s control over the driving mechanism of the vehicle.

Source:

S.L. 1955, ch. 237, § 55; R.C. 1943, 1957 Supp., § 39-1054.

39-10-54.1. Opening and closing vehicle door.

No person may open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so and can be done without interfering with the movement of other traffic, nor may any person leave a door open on the side of a vehicle available to moving traffic for a period of time longer than necessary to load or unload passengers.

Source:

S.L. 1963, ch. 283, § 17; 1975, ch. 349, § 35.

39-10-55. Driving on mountain highways.

The driver of a motor vehicle traveling through defiles or canyons or on mountain highways shall hold such motor vehicle under control and as near the right-hand edge of the highway as reasonably possible and, except when driving entirely to the right of the center of the roadway, shall give audible warning with the horn of such motor vehicle upon approaching any curve where the view is obstructed within a distance of two hundred feet [60.96 meters] along the highway.

Source:

S.L. 1955, ch. 237, § 56; R.C. 1943, 1957 Supp., § 39-1055; S.L. 1975, ch. 349, § 36.

Collateral References.

Duty and liability with respect to giving audible signal where driver’s view ahead obstructed at curve or hill, 16 A.L.R.3d 897.

39-10-56. Coasting prohibited.

  1. The driver of any motor vehicle when traveling upon a downgrade may not coast with the gears or transmission of such vehicle in neutral.
  2. The driver of a truck or bus when traveling upon a downgrade may not coast with the clutch disengaged.

Source:

S.L. 1955, ch. 237, § 57; R.C. 1943, 1957 Supp., § 39-1056; S.L. 1975, ch. 349, § 37.

39-10-57. Following emergency vehicle too closely prohibited — Stopping by emergency vehicle.

The driver of a vehicle other than one on official business may not follow closer than five hundred feet [152.4 meters] behind an emergency vehicle displaying the appropriate light for that vehicle in an emergency. A driver of a vehicle other than one on official business may not stop the vehicle within two hundred feet [60.96 meters] of any emergency vehicle stopped in answer to a 911 emergency.

Source:

S.L. 1955, ch. 237, § 58; R.C. 1943, 1957 Supp., § 39-1057; S.L. 1975, ch. 347, § 38; 2003, ch. 329, § 1.

39-10-58. Crossing firehose.

No vehicle may be driven over any unprotected hose of a fire department when laid down on any street, private road, or driveway to be used at any fire or alarm of fire without the consent of the fire department official in command.

Source:

S.L. 1955, ch. 237, § 59; R.C. 1943, 1957 Supp., § 39-1058; S.L. 1975, ch. 349, § 39.

39-10-59. Garbage, glass, rubbish, and injurious materials on highway prohibited.

  1. An individual may not deposit upon any highway any glass bottle, glass, nails, tacks, wire, cans, rubbish, or any other litter. In addition, an individual may not deposit upon a highway any other substance likely to injure a person, animal, or vehicle.
  2. An individual who deposits, or permits to be deposited, upon a highway a destructive or injurious material shall immediately remove or cause to be removed the material.
  3. An individual removing a wrecked or damaged vehicle from a highway shall remove any glass or other injurious substance dropped upon the highway from the vehicle.

Source:

S.L. 1955, ch. 237, § 60, R.C. 1943, 1957 Supp., § 39-1059; 1991 ch. 277, § 20; 2007, ch. 332, § 1; 2011, ch. 192, § 4.

39-10-60. Riding on bicycles. [Repealed]

Repealed by S.L. 1975, ch. 348, § 17.

Note.

For present provisions, see ch. 39-10.1.

39-10-61. Clinging to vehicles. [Repealed]

Repealed by S.L. 1975, ch. 348, § 17.

39-10-62. Riding on roadways and bicycle paths. [Repealed]

Repealed by S.L. 1975, ch. 348, § 17.

39-10-63. Carrying articles. [Repealed]

Repealed by S.L. 1975, ch. 348, § 17.

39-10-63.1. Lamps and other equipment on bicycles. [Repealed]

Repealed by S.L. 1975, ch. 348, § 17.

39-10-64. Driving through safety zone prohibited.

No vehicle shall at any time be driven through or within a safety zone.

Source:

S.L. 1955, ch. 237, § 65; R.C. 1943, 1957 Supp., § 39-1064; S.L. 1975, ch. 347, § 24.

39-10-65. Operation of motor vehicle, tractor, or other vehicle prohibited on flood protective works — Exception — Penalty.

  1. Unless authorized by the authority in charge thereof, no person shall operate a motor vehicle, tractor, or other vehicle upon or across any flood protective works, including any dike or flood protective works constructed by a state or federal agency, or by any municipality or local subdivision of the state.
  2. Any person violating the provisions of this section shall be liable to any person suffering injury as a result of the violation; and in addition, shall be guilty of a class B misdemeanor.

Source:

S.L. 1957, ch. 265, §§ 1, 2; R.C. 1943, 1957 Supp., § 39-1065; S.L. 1975, ch. 106, § 439.

39-10-66. Vehicle approaching a yield right of way sign.

Repealed by S.L. 1963, ch. 283, § 20.

39-10-67. Moving heavy equipment at railroad grade crossing.

  1. No person may operate or move any crawler-type tractor, steam shovel, derrick, roller, or any equipment or structure having a normal operating speed of ten or less miles [16.09 or less kilometers] per hour or a vertical body or load clearance of less than one-half inch per foot [12.7 millimeters] of the distance between any two adjacent axles or in any event of less than nine inches [22.86 centimeters], measured above the level surface of a roadway, upon or across any tracks at a railroad grade crossing without first complying with this section.
  2. Before making any such crossing, the person operating or moving any such vehicle or equipment shall first stop the same not less than fifteen feet [4.57 meters] nor more than fifty feet [15.24 meters] from the nearest rail of such railroad and while so stopped shall listen and look in both directions along such track for any approaching train and for signals indicating the approach of a train, and may not proceed until the crossing can be made safely.
  3. No such crossing may be made when warning is given by automatic signal or crossing gates or a flagman or otherwise of the immediate approach of a railroad train or car. If a flagman is provided by the railroad, movement over the crossing must be under the flagman’s direction.

Source:

S.L. 1969, ch. 345, § 1.

39-10-68. Stop when traffic obstructed.

No driver may enter any intersection or a marked crosswalk or drive onto a railroad grade crossing unless there is sufficient space on the other side of the intersection, crosswalk, or railroad grade crossing to accommodate the vehicle the driver is operating without obstructing the passage of other vehicles, pedestrians, or railroad trains notwithstanding any traffic-control signal indication to proceed.

Source:

S.L. 1975, ch. 348, § 9.

39-10-69. Charging violation and proving negligence in civil action.

  1. In every charge of violation of any speed regulation, the complaint and the summons or notice to appear must specify the speed at which the defendant is alleged to have driven and also the maximum speed applicable within the district or at the location.
  2. The provision in this title declaring maximum speed limitations may not be construed to relieve the plaintiff in any action from the burden of proving negligence on the part of the defendant as the proximate cause of the accident.

Source:

S.L. 1975, ch. 348, § 10; 1987, ch. 73, § 21.

39-10-70. Racing on highways. [Repealed]

Repealed by S.L. 1981, ch. 392, § 6.

39-10-71. Fleeing or attempting to elude a peace officer — Penalty.

  1. A driver of a motor vehicle who willfully fails or refuses to bring the vehicle to a stop, or who otherwise flees or attempts to elude, in any manner, a pursuing police vehicle or peace officer, when given a visual or audible signal to bring the vehicle to a stop, is guilty of a:
    1. Class A misdemeanor for a first offense and a class C felony for a subsequent offense within three years;
    2. Class C felony if the driver violates this section while willfully fleeing during or after the commission of a felony; or
    3. Class C felony if, at any time during the flight or pursuit, the driver willfully operates the vehicle in a manner constituting an inherent risk of death or serious bodily injury to a third person.
  2. A signal complies with this section if the signal is perceptible to the driver and:
    1. If given from a vehicle, the signal is given by hand, voice, emergency light, or siren, and the stopping vehicle is appropriately marked showing it to be an official police vehicle; or
    2. If not given from a vehicle, the signal is given by hand, voice, emergency light, or siren, and the officer is in uniform or prominently displays the officer’s badge of office.

Source:

S.L. 1975, ch. 348, § 12; 1985, ch. 438, § 1; 1987, ch. 475, § 1; 1993, ch. 386, § 3; 1999, ch. 126, § 2; 2003, ch. 330, § 1; 2011, ch. 281, § 2; 2019, ch. 328, § 1, effective August 1, 2019.

Cross-References.

Classification of offenses, penalties, see § 12.1-32-01.

Notes to Decisions

Double Jeopardy.

Even if the City of Williston, North Dakota, had adopted N.D.C.C. § 12.1-08-11 verbatim as its city ordinance or the State had stipulated to the substitution, double jeopardy did not attach, because the statute to which defendant had already pled guilty was criminalized flight by anything other than a motor vehicle, including on foot, under N.D.C.C. § 12.1-08-11, and N.D.C.C. § 39-10-71, governed flight by motor vehicle. Thus, a comparison of the two offenses revealed that they were two distinctly different crimes; therefore, double jeopardy could not attach and defendant’s conviction under N.D.C.C. § 39-10-71(1) was affirmed. State v. Stensaker, 2007 ND 6, 725 N.W.2d 883, 2007 N.D. LEXIS 7 (N.D. 2007).

Evidence.
—Held Sufficient.

Evidence at the trial level relating to whether police officer’s signal to stop was perceptible to defendant was sufficient to justify the court’s guilty verdict. State v. Eversvik, 514 N.W.2d 370, 1994 N.D. LEXIS 78 (N.D. 1994).

Defendant was properly convicted of simple assault on a peace officer, fleeing or attempting to elude a peace officer, and preventing arrest because he was given a visual signal to stop when a detective activated his emergency lights and, while the emergency lights were still on and without any indication the detective had released him, defendant drove away and when the detective another officer later encountered defendant at a storage unit, defendant shoved the detective into a storage unit door, closed his car door on the detective’s arm, and kicked the other officer in the chest and chin, causing both officers pain. State v. Hamre, 2019 ND 86, 924 N.W.2d 776, 2019 N.D. LEXIS 85 (N.D. 2019).

Sufficient evidence supported a juvenile’s fleeing or attempting to elude a peace officer conviction because the evidence showed the juvenile drove a vehicle which picked up speed after an officer attempted to stop the vehicle by turning on the officer’s squad car’s overhead lights. K.V. v. A.V., 2019 ND 255, 934 N.W.2d 879, 2019 N.D. LEXIS 259 (N.D. 2019).

Fleeing on Foot.

This section, prohibiting fleeing or attempting to elude a police officer, applies to the driver of a motor vehicle fleeing from a peace officer on foot, as the legislature added the phrase “in any manner” to…“who otherwise flees or attempts to elude.” State v. Pollack, 462 N.W.2d 119, 1990 N.D. LEXIS 208 (N.D. 1990).

Where officer initially used flashing lights on her police car to signal defendant to stop vehicle and when officer told defendant to get into police car, defendant told officer “I don’t have to take this shit” and then broke loose from officer’s grasp and ran away, there was sufficient evidence to find that defendant violated this section by fleeing on foot. State v. Pollack, 462 N.W.2d 119, 1990 N.D. LEXIS 208 (N.D. 1990).

Hot Pursuit.

Police officer had probable cause that defendant was fleeing or attempting to elude him under N.D.C.C. § 39-10-71, which is not a minor, nonjailable offense, and the officer’s warrantless, limited entry into defendant’s open garage while in hot pursuit of defendant was reasonable. The district court erred in granting defendant’s motion to suppress evidence for a violation of her rights under either the Fourth Amendment or N.D. Const. art. I, § 8. City of Bismarck v. Brekhus, 2018 ND 84, 908 N.W.2d 715, 2018 N.D. LEXIS 88 (N.D. 2018), cert. denied, — U.S. —, 139 S. Ct. 187, 202 L. Ed. 2d 115, 2018 U.S. LEXIS 5452 (U.S. 2018), overruled in part, Lange v. California, — U.S. —, 141 S. Ct. 2011, 210 L. Ed. 2d 486, 2021 U.S. LEXIS 3396 (U.S. 2021).

Officer Out of Uniform.

A conviction of fleeing a police officer could not be sustained where the police officers were in civilian clothes, driving unmarked cars. State v. Erdman, 422 N.W.2d 808, 1988 N.D. LEXIS 106 (N.D. 1988).

39-10-72. Funeral processions — Traffic regulations.

  1. Notwithstanding any traffic-control device, a law enforcement officer leading a funeral procession may proceed through any intersection or make any turns or other movements necessary while leading the procession. The officer, without regard to any traffic-control device, may direct other drivers not in the funeral procession to stop, turn, proceed, or make other movements. When leading the funeral procession, the officer must be in a marked patrol vehicle and the vehicle’s lighted headlamps, taillamps, and top-mounted and grill-mounted signal lamps must be displayed at all times during the procession.
  2. Notwithstanding any traffic-control device or provision governing the right of way, whenever a law enforcement officer leading a funeral procession enters an intersection, the remainder of the vehicles in the funeral procession may follow through the intersection. Each vehicle in the procession, however, must exercise reasonable care toward any other vehicle or pedestrian on the roadway.
  3. Notwithstanding any traffic-control device or provision governing rights of way and subject to the following conditions, vehicles in a funeral procession have the right of way.
    1. All vehicles in a funeral procession must display lighted headlamps, taillamps, and flashing emergency lamps.
    2. All vehicles in a funeral procession must follow the preceding vehicle in the procession as closely as is safe and practicable.
    3. The driver of a vehicle in a funeral procession shall yield the right of way to an approaching emergency vehicle when directed to do so by a law enforcement officer or when the vehicle is giving an audible or visual signal.
    4. A vehicle that becomes separated from the funeral procession and the law enforcement escort, so that the procession is no longer continuous, must proceed to its destination in a safe and prudent manner obeying all traffic signals and general rules of the road.
  4. Other vehicles shall conform to the following rules:
    1. The driver of a vehicle may not drive between the vehicles comprising a funeral procession while those vehicles are in motion, except when authorized to do so by a law enforcement officer or when such vehicle is an emergency vehicle giving an audible or visible signal.
    2. The driver of a vehicle not part of a funeral procession may not join a funeral procession for the purpose of securing the right of way granted under subsection 3.
    3. The driver of a vehicle not in a funeral procession may not pass vehicles in such a procession on a two-lane highway or roadway.
    4. The driver of a vehicle may pass a funeral procession on its left side on any multiple-lane highway whenever such passing can be done safely, unless the procession is in the farthest left lane, in which case passing is permissible on the right.
    5. When a funeral procession is proceeding through a red signal as permitted by subsection 3, a vehicle that is not in the procession may not enter the intersection unless it can do so without crossing the path of the funeral procession. If the red signal changes to green while the funeral procession is still within the intersection, a vehicle facing a green signal may proceed, but the funeral procession has the right of way.

Source:

S.L. 1991, ch. 417, § 2.

39-10-73. Flashing green lights.

An authorized emergency vehicle may not display a flashing green light unless the vehicle is used as a command center in an emergency.

Source:

S.L. 2007, ch. 333, § 1.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 130, S.L. 2015 became effective July 1, 2015.

39-10-74. Motor vehicle platoons.

  1. The department, in coordination with the state highway patrol superintendent, shall develop an operational plan that provides guidelines for operating a platoon. The plan must include operational information that must be provided by a platoon technology provider or commercial motor vehicle operator. The department may restrict platooning operations in accordance with the guidelines or the operational information provided in the plan.
  2. A platoon may not operate unless the platoon technology provider or the commercial motor vehicle operator files an operational plan with the department and the plan is approved for general platoon operations. If the department does not approve the plan, the department shall inform the platoon technology provider or commercial motor vehicle operator of the reason for the disapproval and provide guidance on how to resubmit the plan to obtain approval.
  3. A person operating a motor vehicle in a platoon without an approved plan must be assessed a fee of one hundred dollars.
  4. A person operating a motor vehicle in violation of the guidelines in an operational plan must be assessed a fee of one hundred dollars.

Source:

S.L. 2019, ch. 329, § 2, effective August 1, 2019.

CHAPTER 39-10.1 Bicycles

39-10.1-01. Effect of chapter — Penalty for violation.

  1. It is unlawful for any person to do any act forbidden or fail to perform any act required in this chapter. Any person who violates any of the provisions of this chapter may be assessed a fee not to exceed five dollars.
  2. The parent of any child and the guardian of any ward may not authorize or knowingly permit any such child or ward to violate any of the provisions of this chapter.
  3. These provisions applicable to bicycles apply whenever a bicycle is operated upon any highway or upon any path set aside for the exclusive use of bicycles subject to those exceptions stated herein.

Source:

S.L. 1975, ch. 348, § 13; 1983, ch. 414, § 4; 1987, ch. 73, § 22.

Collateral References.

Parent’s liability for injury caused by child riding a bicycle, 70 A.L.R.3d 611.

39-10.1-02. Traffic laws apply to persons riding bicycles.

Every person riding a bicycle upon a roadway is granted all of the rights and is subject to all of the duties applicable to the driver of a vehicle by this title, except as to special regulations in this title and except as to those provisions of this title which by their nature can have no application.

Source:

S.L. 1975, ch. 348, § 14.

39-10.1-03. Riding on bicycle.

  1. A person propelling a bicycle may not ride other than upon or astride a permanent and regular seat attached thereto.
  2. No bicycle may be used to carry more persons at one time than the number for which it is designed and equipped.

Source:

S.L. 1975, ch. 348, § 13.

DECISIONS UNDER PRIOR LAW

Analysis

Joint Enterprise.

Right of child riding on handlebars of friend’s bicycle to recover from motorist for injuries sustained when motorist sideswiped bicycle could not be barred by imputing to him negligence or contributory negligence of his friend, also a minor, on theory they were engaged in joint enterprise of riding to store to purchase popsicles. Dimond v. Kling, 221 N.W.2d 86, 1974 N.D. LEXIS 189 (N.D. 1974).

Violation As Evidence of Negligence.

Violation of statutes or ordinances governing the use of bicycles on a highway may be considered by jury in personal injury action as evidence of negligence, if such violation contributed to the cause of the accident. Dimond v. Kling, 221 N.W.2d 86, 1974 N.D. LEXIS 189 (N.D. 1974).

39-10.1-04. Clinging to vehicle.

No person riding upon any bicycle, coaster, roller skates, sled, or toy vehicle may attach the same or the person’s self to any vehicle upon a roadway, except a sled being pulled by a snowmobile.

Source:

S.L. 1975, ch. 348, § 13.

39-10.1-05. Riding on roadway and bicycle path.

  1. An individual operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable, exercising due care when passing a standing vehicle or one proceeding in the same direction.
  2. A group of individuals riding bicycles upon a roadway may not ride more than two abreast, except on paths or parts of roadways set aside for the exclusive use of bicycles.

Source:

S.L. 1975, ch. 348, § 13; 2009, ch. 337, § 1.

39-10.1-05.1 Yielding and stopping while operating a bicycle on a roadway.

  1. An individual operating a bicycle who is approaching a stop sign at an intersection with a roadway having three or more lanes for moving traffic shall come to a complete stop before entering the intersection.
  2. An individual operating a bicycle who is approaching a stop sign at an intersection where a vehicle is stopped in the roadway at the same stop sign shall come to a complete stop before entering the intersection.
  3. An individual operating a bicycle who is approaching a stop sign at an intersection with a roadway having two or fewer lanes for moving traffic shall reduce speed and, if required for safety, stop before entering the intersection. After slowing to a reasonable speed or stopping, the individual shall yield the right of way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time the individual is moving across or within the intersection, except that an individual, after slowing to a reasonable speed and yielding the right of way if required, cautiously may make a turn or proceed through the intersection without stopping.
  4. An individual operating a bicycle who is approaching an intersection shall yield the right of way to any vehicle that already has entered the intersection.
  5. When an individual operating a bicycle and a vehicle enter an intersection from different roadways at approximately the same time, the operator of the vehicle or bicycle on the left shall yield the right of way to the vehicle or bicycle on the right.
  6. If the individual operating a bicycle is involved in a collision with a vehicle in the intersection or junction of roadways after proceeding past a stop sign without stopping or past a steady red traffic-control light, the collision is deemed prima facie evidence of the individual’s failure to yield the right of way.

Source:

S.L. 2021, ch. 298, § 1, effective August 1, 2021.

39-10.1-06. Carrying article.

No person operating a bicycle may carry any package, bundle, or article which prevents the driver from keeping at least one hand upon the handlebars.

Source:

S.L. 1975, ch. 348, § 13.

39-10.1-07. Lamps and other equipment on bicycles.

  1. Every bicycle when in use at nighttime must be equipped with a lamp on the front which emits a white light visible from a distance of at least five hundred feet [152.4 meters] to the front and with a red reflector on the rear of a type approved by the department. A lamp emitting a red light visible from a distance of five hundred feet [152.4 meters] to the rear may be used in addition to the red reflector.
  2. Every bicycle must be equipped with a brake which will enable the operator to make the braked wheels skid on dry, level, clean pavement.

Source:

S.L. 1975, ch. 348, § 13.

39-10.1-07.1. Motorized bicycle — Age of operator. [Repealed]

Repealed by S.L. 1983, ch. 414, § 6.

39-10.1-08. Point system not applicable.

Any violation of this chapter, or any moving violation as defined in section 39-06.1-09, or any nonmoving violation as defined in section 39-06.1-08 when committed on a bicycle or an electric bicycle as defined in section 39-01-01, is not cause for the licensing authority to assess points against the driving record of the violator pursuant to section 39-06.1-10. Any other legally authorized penalty for a criminal traffic offense or noncriminal traffic violation is applicable to bicyclists.

Source:

S.L. 1975, ch. 348, § 13; 1987, ch. 73, § 23; 2021, ch. 278, § 3, effective August 1, 2021.

39-10.1-09. Electric bicycles.

  1. Beginning January 1, 2022, any person that manufacturers or distributes an electric bicycle in this state shall affix a permanent label to the electric bicycle which contains the following information in at least nine-point Arial font:
    1. The designated class of the electric bicycle;
    2. The maximum assisted speed of the electric bicycle; and
    3. The wattage of the electric bicycle’s motor.
  2. Any electric bicycle equipment and manufacturing must be in accordance with the requirements for bicycles provided under 16 CFR part 1512.
  3. An electric bicycle must be equipped so the electric motor can be disengaged or cease to function when the individual operating the electric bicycle stops pedaling or when the brakes are applied.
  4. A person may not tamper with or modify an electric bicycle to change the motor-powered speed capability or engagement of an electric bicycle, unless the label indicating the classification required under subsection 1 is replaced after modification.
  5. Unless otherwise prohibited by a governmental entity having jurisdiction, an individual may operate an electric bicycle on any bicycle path or multi-use path.
  6. An individual operating a class 3 electric bicycle shall ensure the bicycle is equipped with a functioning speedometer.
  7. An individual under the age of eighteen may not operate a class 3 electric bicycle unless the individual is wearing a safety helmet.

Source:

S.L. 2021, ch. 278, § 4, effective August 1, 2021.

CHAPTER 39-10.2 Motorcycles

39-10.2-01. Traffic laws apply to person operating motorcycle or motorized bicycle.

Every person operating a motorcycle or motorized bicycle is granted all of the rights and is subject to all of the duties applicable to the driver of any other vehicle under this title, except as to special regulations in this chapter and except as to those provisions of this title which by their nature can have no application. For purposes of this chapter, the term “motorcycle” means motorcycles and motorized bicycles.

Source:

S.L. 1975, ch. 348, § 14; 1983, ch. 414, § 4.

39-10.2-02. Riding on motorcycle.

  1. A person operating a motorcycle shall ride only upon the permanent and regular seat attached thereto, and such operator may not carry any other person nor may any other person ride on a motorcycle unless such motorcycle is designed to carry more than one person, in which event a passenger may ride upon the permanent and regular seat if designed for two persons, or upon another seat firmly attached to the motorcycle at the rear or side of the operator.
  2. A person shall ride upon a motorcycle only while sitting astride the seat, facing forward, with one leg on each side of the motorcycle.
  3. No person may operate a motorcycle while carrying any package, bundle, or other article which prevents the person from keeping both hands on the handlebars.
  4. No operator may carry any person, nor may any person ride in a position that will interfere with the operation or control of the motorcycle or the view of the operator.

Source:

S.L. 1975, ch. 348, § 14.

39-10.2-03. Operating motorcycles on roadways laned for traffic.

  1. All motorcycles are entitled to full use of a lane and no motor vehicle may be driven in such a manner as to deprive any motorcycle of the full use of a lane. This subsection does not apply to the operation of motorcycles two abreast in a single lane as authorized in subsection 4.
  2. The operator of a motorcycle may not overtake and pass in the same lane occupied by the vehicle being overtaken.
  3. No person may operate a motorcycle between lanes of traffic or between adjacent lines or rows of vehicles.
  4. Motorcycles may not be operated more than two abreast in a single lane.
  5. Subsections 2 and 3 do not apply to police officers in the performance of their official duties.

Source:

S.L. 1975, ch. 348, § 14.

39-10.2-04. Clinging to other vehicle.

No person riding upon a motorcycle may attach the person’s self or the motorcycle to any other vehicle on a roadway.

Source:

S.L. 1975, ch. 348, § 14.

39-10.2-05. Footrests.

Any motorcycle carrying a passenger, other than in a sidecar or enclosed cab, must be equipped with footrests for such passenger.

Source:

S.L. 1975, ch. 348, § 14.

39-10.2-06. Equipment for motorcycle riders.

  1. No person under the age of eighteen years may operate or ride upon a motorcycle unless a safety helmet meeting United States department of transportation standards is being worn on the head of the operator and rider, except when participating in a lawful parade. If the operator of a motorcycle is required to wear a safety helmet, any passenger must also wear a safety helmet regardless of the age of the passenger.
  2. This section does not apply to persons riding within an enclosed cab or on a golf cart.
  3. No person may operate a motorcycle if a person under the age of eighteen years is a passenger upon that motorcycle and is not wearing a safety helmet as provided in subsection 1.

Source:

S.L. 1975, ch. 348, § 14; 1977, ch. 355, § 3; 1985, ch. 439, § 1; 2011, ch. 271, § 16.

DECISIONS UNDER PRIOR LAW

Constitutionality.

Former statute requiring crash helmets for motorcycle operators and passengers was not unconstitutional as deprivation of personal freedom and due process on theory that it affected only welfare of operator and passenger and not public welfare; violation of statute was a crime punishable under statute making performance of a prohibited act for which no penalty was provided a misdemeanor. State v. Odegaard, 165 N.W.2d 677, 1969 N.D. LEXIS 116 (N.D. 1969).

Collateral References.

Motorcyclist’s failure to wear helmet or other protective equipment as affecting recovery for personal injury or death, 85 A.L.R.4th 365.

Validity of traffic regulations requiring motorcyclists to wear helmets or other protective gear, 72 A.L.R.5th 607.

Law Reviews.

Negligence-Damages-Expert Testimony on Plaintiff Motorcyclist’s Nonuse of a Helmet is Admissible Evidence on Issue of Damages, 60 N.D. L. Rev. 717 (1984).

39-10.2-07. Other applicable law.

All of the provisions of chapter 39-06.1 pertaining to the disposition of traffic offenses apply to this chapter.

Source:

S.L. 1975, ch. 348, § 14; 1977, ch. 355, § 4.

CHAPTER 39-10.3 Experimental Vehicles

39-10.3-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Chase vehicle” means a motor vehicle that accompanies an experimental vehicle while operating on a highway.
  2. “Experimental vehicle” means a vehicle with an unladen weight of six thousand pounds [2721.55 kilograms] or less which may be equipped with any configuration of axles and wheels and which is primarily powered by some source other than a combustion engine, muscle, or an animal.

Source:

S.L. 2001, ch. 351, § 1.

39-10.3-02. Applicability.

An experimental vehicle is a motor vehicle under this title, except:

  1. Chapter 39-22 does not apply to experimental vehicles.
  2. Registration of an experimental vehicle is governed by this chapter.
  3. The governing body of a political subdivision may regulate, restrict, or prohibit the use of an experimental vehicle operating within the political subdivision’s corporate limits in areas under the jurisdiction of the political subdivision.

Source:

S.L. 2001, ch. 351, § 1.

39-10.3-03. Experimental vehicle registration — Application — Issuance — Fees — Renewal.

  1. An individual may not operate an experimental vehicle unless the vehicle has been registered in accordance with this chapter.
  2. The department shall design and furnish an application that must be used to register an experimental vehicle. The registration must state the name and address of every owner of the experimental vehicle and must be signed by at least one owner. A copy of the application is evidence of registration for the first thirty days after the date of application.
  3. On receipt of an application and the appropriate fee, the department shall register the experimental vehicle and assign a registration number and a certificate of registration. The certificate of registration must include information regarding name and address of the owner.
  4. The fee for registration of an experimental vehicle is fifty dollars for each registration cycle of one year ending on March thirty-first. The department may prorate the initial registration fee. For a duplicate or replacement registration number or registration card that is lost, mutilated, or becomes illegible, the department may charge a fee of not more than five dollars.
  5. To renew a registration, the owner of an experimental vehicle shall follow the procedure adopted by the department and pay the registration fee.
  6. The department may adopt rules for the registration of experimental vehicles and the display of registration numbers.

Source:

S.L. 2001, ch. 351, § 1.

39-10.3-04. Exemption from fees.

Payment of fees is not required of an experimental vehicle owned and used by the United States, a state or any of its agencies, institutions, or political subdivisions; an experimental vehicle registered in a foreign country and temporarily used in this state; or an experimental vehicle validly licensed in another state and which has not been in this state for more than thirty consecutive days.

Source:

S.L. 2001, ch. 351, § 1.

39-10.3-05. Transfer or termination of experimental vehicle ownership — Change of address of owner.

Within fifteen days of a transfer of any ownership interest in an experimental vehicle, other than a security interest, the destruction or abandonment of any experimental vehicle, or a change of address of the owner as listed with the application for registration, written notice of the fact must be given by the last registered owner to the director in the form the director requires.

Source:

S.L. 2001, ch. 351, § 1.

39-10.3-06. Rules of operation.

A person may not operate an experimental vehicle on a highway without being accompanied by a chase vehicle. The chase vehicle must follow the experimental vehicle at a safe-driving distance.

Source:

S.L. 2001, ch. 351, § 1.

39-10.3-07. Equipment.

An experimental vehicle must be equipped with a horn, front and rear turn signal lamps, stop lamps, a balanced and coreactive dual-braking system, a windshield, a safety belt installed at each seating position, an exterior mirror mounted on the operator’s side of the vehicle, a roll cage that encompasses the entire driver, fresh air intake vents or wheel openings, and either an exterior mirror mounted on the passenger’s side of the vehicle or an interior rearview mirror.

Source:

S.L. 2001, ch. 351, § 1.

39-10.3-08. Penalty.

A violation of this chapter for which there is no penalty in this title is a class B misdemeanor.

Source:

S.L. 2001, ch. 351, § 1.

CHAPTER 39-11 Equipment of Vehicles [Repealed]

[Repealed by S.L. 1963, ch. 283, § 20]

Note.

For present provisions, see ch. 39-21.

CHAPTER 39-12 Size, Width, and Height Restrictions

39-12-01. State and local authorities may classify highways as to weight and load capacities.

The director, the board of county commissioners, and other appropriate bodies having control of roads, may classify public highways and roads under their respective jurisdictions and limitations as to the weight and load of vehicles thereon for such respective classifications must be enforced as provided in section 39-12-07.

Source:

S.L. 1927, ch. 162, § 38; R.C. 1943, § 39-1201; S.L. 1983, ch. 418, § 7.

Collateral References.

Power to limit weight of vehicle or its load with respect to use of streets or highways, 75 A.L.R.2d 376.

Violation of regulations governing size or weight of motor vehicles, or combinations of vehicles and loads, on the highway as a basis of liability for personal injury, death, or damage to private property, 21 A.L.R.3d 989.

Liability for damage to highway or bridge caused by size or weight of motor vehicle or load, 53 A.L.R.3d 1035, 31 A.L.R.5th 171.

39-12-02. Special permits for vehicles of excessive size and weight issued — Contents — Fees.

    1. The highway patrol and local authorities in their respective jurisdictions, upon application and payment of the appropriate charges and for good cause shown, may issue a special written permit authorizing the applicant to operate or move a vehicle, mobile home, or modular unit of a size or weight exceeding the maximum specified by this chapter, upon a highway under the jurisdiction of the body granting the permit. A permit may designate the route to be traversed and may contain other restrictions or conditions deemed necessary by the body granting the permit. The permit must be carried in the vehicle to which it refers in printed or electronic format and must be opened to inspection by a peace officer or agent of the superintendent of the highway patrol unless prior approval is obtained from the highway patrol. It is a violation of this chapter for a person to violate the terms or conditions of the permit. The highway patrol and local authorities may adopt rules governing the movement of oversize and overweight vehicles.
    2. Each township in a county that participates in a uniform truck permitting system for authorization of oversized or overweight vehicle movements shall participate in the same system.
    3. When fee changes are proposed, a uniform permit system shall provide public notice of the date, hour, and place at which the public may comment on the proposed fee changes.
    4. Notwithstanding any other provision of this chapter, a city, county, or township having control of roads may not impose additional fees for the use of roads beyond the fees established under a uniform permit program. A city, county, or township may issue a penalty to a person that violates a posted road restriction. If a permit is denied, a person may receive an additional fee or condition from the city, county, or township in exchange for authorization to move an oversized or overweight vehicle on a road under the jurisdiction of the city, county, or township.
  1. Upon an application for a permit to move a new manufactured building or modular unit from outside this state to be located anywhere within this state, the manufacturer is deemed to have certified that the new manufactured building or modular unit meets all applicable building codes and all applicable electrical wiring and equipment, plumbing, and fire standards. The state is not liable to a person for issuing a permit in violation of this subsection.
  2. An appropriate charge must be made for a permit and all funds collected hereunder by the highway patrol must be deposited in the state highway fund for use in the construction and maintenance of highways and operating expenses of the department. Permit fees generated by a political subdivision must be deposited in the local authority’s general fund for support of the local road system. Publicly owned vehicles that provide service beyond the agency’s jurisdiction, official, publicly owned, emergency, or military vehicles are not subject to charges for permits. The minimum fee for selected charges is as follows:
    1. The fee for the ten percent weight exemption, harvest and wintertime, is fifty dollars per month for fees paid on a monthly basis or two hundred fifty dollars per year for fees paid on a yearly basis. Unused fees paid on a monthly basis are refundable. Unused fees paid on a yearly basis are not refundable.
    2. The fee for an interstate permit is ten dollars per trip or three hundred dollars per twelve-month period for unlimited trips.
    3. The fee for special mobile equipment is twenty-five dollars per trip.
    4. The fee for engineering is twenty-five dollars per trip.
    5. The fee for faxing a permit is five dollars.
    6. The fee for a single trip permit is twenty dollars per trip.
    7. The fee for a bridge length permit is thirty dollars per trip or one hundred fifty dollars per twelve-month period.
    8. The fee for a longer combination vehicle permit is one hundred dollars per month for fees paid on a monthly basis.
    9. The fee for an overwidth vehicle or load that is fourteen feet six inches [4.42 meters] or less is twenty dollars per trip or one hundred fifty dollars per twelve-month period unless the vehicle is a noncommercial fishhouse trailer being moved by the owner, then the fee is twenty dollars per twelve-month period.
    10. The fee for an overlength vehicle or load that is one hundred twenty feet [36.58 meters] or less is twenty dollars per trip or one hundred fifty dollars per twelve-month period.
    11. The highway patrol may establish an online electronic permit system. If the highway patrol establishes an online electronic permit system, the highway patrol shall assess an additional fee of up to fifteen dollars for every permit issued under this section to be deposited into the motor carrier electronic permit transaction fund.
  3. The director of tax equalization of the county of destination must be furnished a copy of the permit for the movement of an overdimensional mobile home.
  4. Permits issued for overdimensional movements of vehicles not exceeding ten feet [3.05 meters] in total width, including load, are valid for travel during the day and night. Permits issued for overdimensional movements of vehicles not exceeding one hundred twenty feet [36.58 meters] in total length, including load, are valid for travel during the day and night with proper lighting.
  5. There is created in the state treasury a fund known as the motor carrier electronic permit transaction fund. All money in the fund is appropriated on a continuing basis to the highway patrol to defray the costs of establishing and maintaining an online electronic permit system for permitting and routing oversize and overweight vehicles in this state. The highway patrol may contract with a private entity to establish, operate, and maintain an online electronic permit system. The online electronic permit system includes the issuance of permits under this section and an automated routing system. The automated routing system must include integration of department of transportation traveler information system information, all other data required for the automated routing system, and integration of the highway patrol computer-aided dispatch system.

Source:

S.L. 1927, ch. 162, § 40; R.C. 1943, § 39-1202; S.L. 1963, ch. 280, § 1; 1965, ch. 278, § 1; 1971, ch. 375, § 1; 1983, ch. 418, § 8; 1985, ch. 440, § 1; 1987, ch. 476, § 1; 1991, ch. 426, § 1; 1997, ch. 41, § 9; 1999, ch. 351, § 1; 1999, ch. 352, § 1; 2001, ch. 352, § 1; 2003, ch. 319, § 3; 2005, ch. 331, § 3; 2005, ch. 337, § 3; 2007, ch. 334, § 1; 2007, ch. 335, § 1; 2009, ch. 338, § 1; 2011, ch. 283, § 1; 2011, ch. 282, § 1; 2011, ch. 284, §§ 1, 2; 2011 Sp., ch. 579, § 2; 2013, ch. 304, § 1; 2017, ch. 258, § 3, effective March 15, 2017; 2017, ch. 270, § 1, effective July 1, 2017; 2017, ch. 36, § 9, effective July 1, 2017; 2017, ch. 271, § 1, effective August 1, 2017; 2019, ch. 330, § 1, effective March 21, 2019.

Note.

Section 39-12-02 was amended 4 times by the 2017 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 270, Session Laws 2017, House Bill 1288; Section 3 of Chapter 258, Session Laws 2017, Senate Bill 2097; Section 9 of Chapter 36, Session Laws 2017, Senate Bill 2011; and Section 1 of Chapter 271, Session Laws 2017, House Bill 1320.

Section 33 of chapter 579, S.L. 2011 Sp. provides, in pertinent part: “EXPIRATION DATE. Section 2 of this Act is effective through December 31, 2013, and is thereafter ineffective.”

39-12-03. Director or local authorities may limit use of vehicles on highways — Exception for inclement weather.

  1. Whenever a highway will be seriously damaged or destroyed by reason of deterioration, rain, snow, or other climatic conditions unless the use of vehicles is prohibited or the weight of the vehicle thereon is limited, the director or employees authorized by the director by an order, and local authorities by ordinance or resolution, may prohibit the operation of vehicles upon such highway or may impose weight restrictions on vehicles. The director or employees making the order and local authorities enacting the ordinance or resolution shall erect or cause to be erected and maintained signs designating the provisions of the order, ordinance, or resolution. The signs must be erected and maintained at each end of the portion of highway affected, and the order, ordinance, or resolution is not effective until the signs are erected and maintained. The operation of trucks or other commercial vehicles or limitations as to the weight of vehicles on designated highways may be prohibited or limited in the same manner.
  2. In instances of inclement weather, as determined by the local authorities, changes may be made to existing posted restrictions on a portion of a highway if the local authority:
    1. Gives public notice of the change in the posted restrictions on any portion of a highway by publishing the inclement weather restriction on the local authority’s website and a uniform county permit system or similar permit system within one hour after the initial determination of inclement weather; and
    2. Within five days of the first date of inclement weather, erects and maintains a sign at each end of the portion of the highway affected by the inclement weather restriction.

Source:

S.L. 1927, ch. 162, § 41; 1929, ch. 141, § 1; 1937, ch. 140, § 1; R.C. 1943, § 39-1203; 2017, ch. 271, § 2, effective August 1, 2017.

Notes to Decisions

In General.

As this section deals with extraordinary use of a highway and not with damage to a highway, the chapter does not preclude an action to recover damages for negligence in damaging a highway, at least where no statutory recovery has been attempted. Board of County Comm'rs v. Peterson Excavating, 406 N.W.2d 674, 1987 N.D. LEXIS 322 (N.D. 1987).

39-12-04. Width, height, and length limitations on vehicles — Exceptions.

  1. Vehicles operated on a highway in this state may not exceed a total outside width, including load thereon, of eight feet six inches [2.59 meters]. This limitation does not apply to:
    1. Construction and building contractors’ equipment and vehicles used to move such equipment which does not exceed ten feet [3.05 meters] in width when being moved by contractors or resident carriers.
    2. Implements of husbandry being moved by resident farmers, ranchers, governmental entities, dealers, or manufacturers between sunrise and sunset. Furthermore, the limitation does not apply to implements of husbandry being moved between sunset and sunrise by resident farmers, ranchers, governmental entities, dealers, or manufacturers on public state, county, or township highway systems other than interstate highway systems.
    3. Hay in the stack or bale being moved along the extreme right edge of a roadway between sunrise and sunset by someone other than a commercial mover.
    4. Commercial movement of haystacks or hay bales with vehicles designed specifically for hauling hay, commercial movement of self-propelled fertilizer spreaders and self-propelled agricultural chemical applicators, whether operating under their own power or being transported by another vehicle, commercial movement of portable grain cleaners, commercial movement of forage harvesters, and the commercial movement of hay grinders, which may be moved on the highway after obtaining a seasonal permit issued by the highway patrol. The highway patrol shall issue seasonal permits that are valid during daylight hours on any day of the week, or that are valid at all times for the movement of self-propelled fertilizer spreaders and self-propelled agricultural chemical applicators, to any commercial entity otherwise qualified under this subdivision. Self-propelled fertilizer spreaders and self-propelled agricultural chemical applicators operating under their own power between sunset and sunrise must display vehicle hazard warning signal lamps as described in subsection 3 of section 39-21-19.1. The seasonal permit is in lieu of registration requirements for the permit period. No seasonal permit may be issued, unless proof of financial responsibility in a minimum of three hundred thousand dollars is filed and the appropriate permit fee is paid. The seasonal permit may also be issued for hauling hay bales with vehicles or vehicle combinations other than those designed specifically for hauling haystacks. This seasonal permit, however, will not be in lieu of registration requirements. All permit fees must be deposited in the state highway distribution fund.
    5. Safety devices that the highway patrol determines are necessary for the safe and efficient operation of motor vehicles may not be included in the calculation of width.
    6. Any non-load-carrying safety appurtenance as determined by the highway patrol which extends no more than three inches [7.62 centimeters] from each side of a trailer is excluded from the measurement of trailer width. The width of a trailer is measured across the sidemost load-carrying structures, support members, and structural fasteners.
    7. The highway patrol may adopt reasonable rules for those vehicles exempted from the width limitations as provided for in this subsection.
  2. Vehicles operated on a highway in this state may not exceed a height of fourteen feet [4.27 meters], whether loaded or unloaded. This height limitation does not affect any present structure such as bridges and underpasses that are not fourteen feet [4.27 meters] in height. This limitation does not apply to vehicles that are at most fifteen feet six inches [4.72 meters] high when all of the following apply:
    1. The vehicle is an implement of husbandry and is being moved by a resident farmer, rancher, dealer, or manufacturer.
    2. The trip is at most sixty miles [96.56 kilometers].
    3. The trip is between sunrise and sunset.
    4. None of the trip is on an interstate highway.
  3. A vehicle operated on a highway in this state may not exceed the following length limitations:
    1. A single unit vehicle with two or more axles including the load thereon may not exceed a length of fifty feet [15.24 meters].
    2. A combination of two units including the load thereon may not exceed a length of seventy-five feet [22.86 meters].
    3. A combination of three or four units including the load thereon may not exceed a length of seventy-five feet [22.86 meters], subject to any rules adopted by the director that are consistent with public highway safety. The rules do not apply to a three-unit combination consisting of a truck tractor and semitrailer drawing a trailer or semitrailer.
    4. A combination of two, three, or four units including the load thereon may be operated on all four-lane divided highways and those highways in the state designated by the director and local authorities as to the highways under their respective jurisdictions and may not exceed a length of one hundred ten feet [33.53 meters], subject to any rules adopted by the director that are consistent with public highway safety.
    5. The length of a trailer or semitrailer, including the load thereon, may not exceed fifty-three feet [16.5 meters] except that trailers and semitrailers titled and registered in North Dakota before July 1, 1987, and towed vehicles may not exceed a length of sixty feet [18.29 meters].
  4. Length limitations do not apply to:
    1. Building moving equipment.
    2. Emergency tow trucks towing disabled lawful combinations of vehicles to a nearby repair facility.
    3. Vehicles and equipment owned and operated by the armed forces of the United States or the national guard of this state.
    4. Structural material of telephone, power, and telegraph companies.
    5. Truck-mounted haystack moving equipment, provided the equipment does not exceed a length of fifty-six feet [17.07 meters].
    6. A truck tractor and semitrailer or truck tractor, semitrailer, and the trailer when operated on the interstate highway system or parts of the federal aid primary system as designated by the director, only when federal law requires the exemption.
    7. Safety and energy conservation devices and any additional length exclusive devices as determined by the highway patrol for the safe and efficient operation of commercial motor vehicles. Length exclusive devices are appurtenances at the front or rear of a commercial motor vehicle semitrailer or trailer, whose function is related to the safe and efficient operation of the semitrailer or trailer.
  5. Motor homes, house cars, travel trailers, fifth-wheel travel trailers, camping trailers, and truck campers may exceed eight feet six inches [2.59 meters] in width if the excess is attributable to an appurtenance that extends beyond the body of the vehicle no more than six inches [15.24 centimeters] on either side of the vehicle. For purposes of this subsection, the term appurtenance includes a shade awning and its support hardware, and any appendage that is intended to be an integral part of a motor home, house car, travel trailer, fifth-wheel travel trailer, camping trailer, or truck camper.

Source:

S.L. 1927, ch. 162, § 36, subss. a to c; 1931, ch. 190, § 1, subss. a to c; 1933, ch. 163, § 1, subss. a to c; 1935, ch. 185, § 1, subss. a to c; 1941, ch. 194, § 1; subss. a to c; R.C. 1943, § 39-1204; S.L. 1945, ch. 246, § 1; 1947, ch. 264, § 1; 1951, ch. 254; 1953, ch. 250, § 1; 1955, ch. 256, § 1; 1957, ch. 270, § 1; 1957 Supp., § 39-1204; S.L. 1959, ch. 297, § 1; 1961, ch. 266, § 1; 1965, ch. 279, §§ 1, 2; 1967, ch. 310, § 1; 1969, ch. 346, § 1; 1969, ch. 347, § 1; 1969, ch. 348, § 1; 1971, ch. 376, § 1; 1973, ch. 305, § 1; 1973, ch. 306, § 1; 1973, ch. 307, § 1; 1975, ch. 322, § 2; 1975, ch. 350, § 1; 1977, ch. 361, § 1; 1977, ch. 362, § 1; 1977, ch. 363, § 1; 1979, ch. 412, § 2; 1981, ch. 397, § 1; 1981, ch. 398, § 1; 1981, ch. 399, § 1; 1983, ch. 426, § 2; 1985, ch. 440, § 2; 1987, ch. 476, § 2; 1987, ch. 477, § 1; 1989, ch. 472, §§ 1 to 3; 1991, ch. 427, § 1; 1993, ch. 391, § 1; 1995, ch. 382, § 1; 1997, ch. 342, § 1; 1999, ch. 352, § 2; 2003, ch. 307, § 3; 2003, ch. 310, § 2; 2003, ch. 331, § 1.

Length Limit Exception Construed.

Violation Constitutes Negligence. Length Limit Exception Construed.

The former exception from the length limitations of carriers of equipment for armed forces of the United States or state national guard, since reinstated, did not except from restriction shipments between private corporations of goods or material suitable for or to be used by the armed forces of the United States or the national guard. Consolidated Freightways v. Lamb, 73 N.D. 339, 15 N.W.2d 74, 1944 N.D. LEXIS 67 (N.D. 1944).

Violation Constitutes Negligence.

Defendant’s violation of this section by pulling haystack mover of excessive length on public highway after sunset was evidence of negligence that was actionable when shown to be proximate cause of accident. Simon v. Woodland, 179 N.W.2d 422, 1970 N.D. LEXIS 127 (N.D. 1970).

Notes to Decisions

Length Limit Exception Construed.

The former exception from the length limitations of carriers of equipment for armed forces of the United States or state national guard, since reinstated, did not except from restriction shipments between private corporations of goods or material suitable for or to be used by the armed forces of the United States or the national guard. Consolidated Freightways v. Lamb, 73 N.D. 339, 15 N.W.2d 74, 1944 N.D. LEXIS 67 (N.D. 1944).

Violation Constitutes Negligence.

Defendant’s violation of this section by pulling haystack mover of excessive length on public highway after sunset was evidence of negligence that was actionable when shown to be proximate cause of accident. Simon v. Woodland, 179 N.W.2d 422, 1970 N.D. LEXIS 127 (N.D. 1970).

39-12-05. Weight limitations for vehicles on interstate system.

A person may not operate on a highway which is part of the interstate system any vehicle:

  1. With a single axle that carries a gross weight in excess of twenty thousand pounds [9071.85 kilograms] or a wheel load over ten thousand pounds [4535.92 kilograms]. A wheel may not carry a gross weight over five hundred fifty pounds [249.48 kilograms] for each inch [2.54 centimeters] of tire width except that such limits may not be applied to tires on the steering axle. Steering axle weights are limited to twenty thousand pounds [9071.85 kilograms] or the axle rating established by the manufacturer, whichever is lower. Axles spaced forty inches [101.60 centimeters] apart or less are considered as one axle and, on axles spaced over forty inches [101.60 centimeters] and under eight feet [2.44 meters] apart, the axle load may not exceed seventeen thousand pounds [7711.07 kilograms] per axle. The wheel load, in any instance, may not exceed one-half the allowable axle load. Spacing between axles is measured from axle center to axle center.
  2. Subject to the limitations imposed by subsection 1 on tires, wheel, and axle loads, the gross weight of which exceeds that determined by the formula of:

W = 500 LN N-1 + 12N + 36

Click to view

where W equals maximum weight in pounds carried on any group of more than one axle; L equals distance in feet between the extremes of any group of consecutive axles; and N equals number of axles in the group under consideration, except that two consecutive sets of tandem axles may carry a gross load of thirty-four thousand pounds [15422.14 kilograms] each, providing the overall distance between the first and last axles of the consecutive sets of tandem axles is at least thirty-six feet [10.97 meters]. The gross weight may not exceed eighty thousand pounds [36287.39 kilograms].

Source:

S.L. 1933, ch. 163, § 1, subs. d; 1935, ch. 185, § 1, subs. e; 1941, ch. 194, § 1, subs. e; R.C. 1943, § 39-1205; S.L. 1945, ch. 246, § 2; 1957, ch. 271, § 1; 1957 Supp., § 39-1205; S.L. 1959, ch. 298, § 1; 1973, ch. 294, § 2; 1977, ch. 364, § 1; 1979, ch. 411, § 2; 1979, ch. 412, § 3; 1983, ch. 440, § 1; 1983, ch. 441, § 1; 1985, ch. 440, §§ 3, 4; 1987, ch. 476, § 3; 2011, ch. 285, § 1.

39-12-05.1. Weight limitations for vehicles on designated highways. [Repealed]

Repealed by S.L. 1983, ch. 441, § 3.

39-12-05.2. Interstate weight limitations if permitted by the Congress of the United States.

If congressional action occurs authorizing a greater gross weight on the interstate system than allowed under section 39-12-05, a person may operate on an interstate highway a vehicle the gross weight of which is at most the weight allowed by the congressional action.

Source:

S.L. 1973, ch. 294, § 4; 1983, ch. 441, § 2.

39-12-05.3. Weight limitations for vehicles on highways other than the interstate system.

  1. A person may not operate on a highway that is not part of the interstate system any vehicle with a single axle that carries a gross weight in excess of twenty thousand pounds [9071.85 kilograms] or a wheel load over ten thousand pounds [4535.92 kilograms]. A wheel may not carry a gross weight over five hundred fifty pounds [249.48 kilograms] for each inch [2.54 centimeters] of tire width. Axles spaced forty inches [101.60 centimeters] apart or less are considered as one axle. On axles spaced over forty inches [101.60 centimeters] and under eight feet [2.44 meters] apart, the axle load may not exceed nineteen thousand pounds [8618.26 kilograms] per axle, with a maximum of thirty-four thousand pounds [15422.14 kilograms] gross weight on a tandem axle and a maximum of forty-eight thousand pounds [21772.32 kilograms] gross weight on any grouping of three or more axles. The wheel load, in any instance, may not exceed one-half the allowable axle load. Spacing between axles is measured from axle center to axle center.
  2. Subject to the limitations imposed by subsection 1 on tires, wheel, and axle loads, a person may not operate on a highway that is not part of the interstate system any vehicle the gross weight of which exceeds that determined by the formula of:
  3. The gross weight limitations in subsections 1 and 2 do not apply to equipment the director and the state highway patrol approve for exemption. The exemption may not exceed one hundred five thousand five hundred pounds [47854 kilograms]. For every vehicle approved for exemption the highway patrol shall issue a nontransferable permit valid for one year. The highway patrol may charge an administrative fee for the permit.
    1. The director, and local authorities, as to the highways under their respective jurisdictions, may issue permits authorizing:
      1. A farmer’s farm vehicle or a motor carrier hired by a farmer to exceed the weight limitations stated in subsections 1 and 2 by ten percent. The permits may not provide for a gross weight in excess of one hundred five thousand five hundred pounds [47854 kilograms]. The permits must provide only for the movement of agricultural products:
        1. From the field of harvest to the point of initial storage or to the first point of sale and transfer of possession during harvest; or
        2. From the point of initial storage to the first point of sale and transfer of possession during the current year’s harvest; or
      2. A specific motor vehicle to exceed the weight limitations stated in subsections 1 and 2 by ten percent. The permits may not provide for a gross weight in excess of one hundred five thousand five hundred pounds [47854 kilograms]. The permits must provide only for the collection and transport of solid wastes, during the period from July fifteenth to December first, and for the general movement of products during the period from December first to March seventh.
    2. The appropriate jurisdictional authority shall establish an appropriate fee for the permits and direct how they shall be issued. The highway patrol shall issue the permits authorized by the director.
  4. The director, and local authorities, as to highways under their respective jurisdictions, may issue permits authorizing all vehicles carrying potatoes or sugar beets to exceed weight limitations stated in subsections 1 and 2 by ten percent during the period from July fifteenth to December first. The permits may not provide for a gross weight in excess of one hundred five thousand five hundred pounds [47854 kilograms]. The appropriate jurisdictional authority shall establish an appropriate fee for the permits and direct how they shall be issued. The highway patrol shall issue the permits authorized by the director.
  5. The director may issue a permit for a truck with a gross weight that exceeds one hundred five thousand five hundred pounds [47854 kilograms], not to exceed one hundred twenty nine thousand pounds [58513.41 kilograms]. The monthly permit fee is one hundred dollars per month or seven hundred dollars annually. Vehicle weight under this subsection is determined according to the formula under subsection 2 of section 39-12-05.
  6. The gross weight limitations in subsections 1 and 2 do not apply to movement of a self-propelled fertilizer spreader if the weight of a single axle does not exceed twenty-two thousand pounds [9973.03 kilograms] and does not exceed five hundred fifty pounds [249.48 kilograms] for each inch [2.54 centimeters] of tire width. The gross weight limitations in subsections 1 and 2 do not apply to movement of a self-propelled agricultural chemical applicator if the weight of a single axle does not exceed twenty-two thousand pounds [9973.03 kilograms] and does not exceed five hundred fifty pounds [249.48 kilograms] for each inch [2.54 centimeters] of tire width. The highway patrol shall issue a seasonal permit for the commercial movement of vehicles exempted by this subsection. The seasonal permit issued under this subsection or under subdivision d of subsection 1 of section 39-12-04 entitles an individual with the permit to operate a vehicle as allowed by either of these provisions. A seasonal permit issued under this subsection is subject to the requirements of subdivision d of subsection 1 of section 39-12-04.
  7. The weight limitations in subsections 1 and 2 do not apply to equipment the director and the state highway patrol approve for exemption but the weight limitations in section 39-12-05 do apply to that equipment. For every vehicle approved for exemption, the highway patrol shall issue a nontransferable bridge length permit valid for a single trip or a calendar year.
  8. The axle weight limitations in subsection 1 do not apply to movements of implements of husbandry or equipment with pneumatic tires used for construction which is used by an agricultural producer while using the equipment for the producer’s agricultural, horticultural, or livestock operations if the maximum wheel load does not exceed five hundred fifty pounds [249.48 kilograms] for each inch [2.54 centimeters] of tire width and if the gross weight limitation in this section is not exceeded.

W = 500 (LN + 12N + 36)

N-1

where W equals the maximum gross weight in pounds on any vehicle or combination of vehicles; L equals distance in feet between the two extreme axles of any vehicle or combination of vehicles; and N equals the number of axles of any vehicle or combination of vehicles under consideration. The gross weight on state highways may not exceed one hundred five thousand five hundred pounds [47854 kilograms] unless otherwise posted and on all other highways the gross weight may not exceed eighty thousand pounds [36287.39 kilograms] unless designated by local authorities for highways under their jurisdiction for gross weights not to exceed one hundred five thousand five hundred pounds [47854 kilograms]. Local authorities are encouraged to assess all roads under their jurisdiction and designate the roads for the appropriate weight limits allowed under this subsection.

Source:

S.L. 1987, ch. 476, § 4; 1987, ch. 478, § 2; 1999, ch. 353, § 1; 2001, ch. 341, § 7; 2001, ch. 353, § 1; 2003, ch. 319, § 4; 2003, ch. 332, § 1; 2005, ch. 331, § 4; 2013, ch. 305, § 1; 2017, ch. 206, § 2, effective July 1, 2017; 2017, ch. 272, § 1, effective August 1, 2017.

Note.

Section 39-12-05.3 was amended 2 times by the 2017 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 272, Session Laws 2017, House Bill 1321; and Section 2 of Chapter 206, Session Laws 2017, House Bill 1255.

39-12-06. Limitations on extending of load beyond side of motor vehicle.

No motor vehicle carrying any load beyond the lines of the left fenders of such vehicle nor extending more than twelve inches [30.48 centimeters] beyond the line of the fenders on the right side of such vehicle may be operated on the highways, except as permitted by section 39-12-04. The department of transportation or the highway patrol shall have authority to revoke permits when such holder violates or abuses the privilege or conditions of permit.

Source:

S.L. 1927, ch. 162, § 36, subss. d, e; 1931, ch. 190, § 1, subss. d, e; 1933, ch. 163, § 1, subss. d, e; 1935, ch. 185, § 1, subs. d; 1941, ch. 194, § 1, subs. d; R.C. 1943, § 39-1206; S.L. 1969, ch. 349, § 1; 1971, ch. 375, § 2; 1981, ch. 397, § 2; 1983, ch. 418, § 10.

39-12-07. Peace officers may weigh vehicle to determine load — Decreasing gross weight of vehicle.

Every police officer, including members of the state highway patrol, having reason to believe that the weight of a vehicle and the load carried thereon is unlawful, may weigh such vehicle and load or have the same weighed either by means of portable or stationary scales, and for that purpose the officer may require the vehicle to be driven to the nearest scales. Such officer may require the driver of such vehicle immediately to unload such portion of the load as may be necessary to decrease the gross weight to the maximum allowed by the provisions of this chapter.

Source:

S.L. 1927, ch. 162, § 39; 1935, ch. 185, § 1a; R.C. 1943, § 39-1207; S.L. 1959, ch. 289, § 5; 1983, ch. 418, § 11.

Cross-References.

Fee for inspection of weighing device, see § 64-02-10.

Notes to Decisions

Movement.

Movement of a vehicle at the direction of a police officer pursuant to N.D.C.C. § 39-12-07 does not constitute movement for purposes of a violation of N.D.C.C. § 39-12-17. Stark County v. 1998 Peterbuilt Truck, 2013 ND 170, 837 N.W.2d 390, 2013 N.D. LEXIS 176 (N.D. 2013).

39-12-08. Penalty for violation of chapter.

A person operating a motor vehicle or the owner of the motor vehicle being operated without a permit as specified in this chapter must be assessed a fee of one hundred dollars. Any person violating any other provision of this chapter, for which a specific penalty is not provided, must be assessed a fee of twenty dollars. Violating the conditions of any permit type automatically voids the permit. For a permit allowed under this chapter, if the violation is of a permit issued by a county under a home rule ordinance or any city, including a home rule city, the statutory fee is for a violation of state law in an amount provided by this section.

Source:

S.L. 1935, ch. 185, § 1b; R.C. 1943, § 39-1208; S.L. 1953, ch. 251, § 1; 1955, ch. 258, § 1; 1957 Supp., § 39-1208; S.L. 1959, ch. 289, § 13; 1973, ch. 301, § 27; 2003, ch. 319, § 5; 2005, ch. 331, § 5; 2011, ch. 282, § 2.

39-12-09. Unlawful to violate provisions governing size, weight, or construction of vehicles — Size and weight specified in this chapter lawful through state — Penalty.

It is unlawful for any person to drive or move, or for the owner to cause or knowingly to permit to be driven or moved, on any highway, any vehicle or vehicles which are not constructed as required in this chapter nor according to the rules and regulations of the director adopted pursuant to the provisions of this chapter. The maximum size and weight of vehicles specified in this chapter are lawful throughout this state, except as they may be limited by virtue of specifications made pursuant to the other provisions of this chapter. Any person who violates any of the provisions of this section must be assessed a fee of twenty dollars.

Source:

S.L. 1927, ch. 162, § 35; R.C. 1943, § 39-1209; S.L. 1973, ch. 301, § 28; 2003, ch. 319, § 6.

39-12-10. Flag or light to be displayed at end of load. [Repealed]

Repealed by S.L. 1963, ch. 283, § 20.

39-12-11. Impounding overweight vehicle.

Any vehicle found to have been moved or used upon any highway, street, or road in this state at a weight exceeding the limitations as specified in any order, ordinance, or resolution issued under section 39-12-03 or as limited by section 39-12-05 may be impounded by any peace officer and taken to a warehouse or garage for storage.

Source:

S.L. 1955, ch. 257, § 1; R.C. 1943, 1957 Supp., § 39-1211; S.L. 1975, ch. 352, § 1.

Notes to Decisions

Impoundment.

Impoundment simply requires that the vehicle be held in legal custody; there was an impoundment giving court jurisdiction over a truck where the truck was in legal custody from the time it was stopped until after it was released upon receipt of a cash deposit even though no impoundment receipt was issued. State ex rel. Hjelle v. 1973 Brockway Tractor, 299 N.W.2d 557, 1980 N.D. LEXIS 298 (N.D. 1980).

Procedure.

A proceeding by the highway commissioner under N.D.C.C. §§ 39-12-11 to 39-12-22 to recover charges for extraordinary use of highways, following impoundment of a vehicle carrying excess weight, is a proceeding in rem, which is purely statutory, and the statutory procedures must be followed by impounding officers and the court. Wentz v. One White Tractor, 110 N.W.2d 178, 1961 N.D. LEXIS 78 (N.D. 1961).

Process.

The impounding of a vehicle carrying excess weight under N.D.C.C. §§ 39-12-11 to 39-12-22 is the equivalent of process and gives the court jurisdiction of the res upon the filing of a complaint as provided in N.D.C.C. § 39-12-14. Wentz v. One White Tractor, 110 N.W.2d 178, 1961 N.D. LEXIS 78 (N.D. 1961).

The equivalent of process giving court jurisdiction over a vehicle is satisfied by holding that vehicle in legal custody. State ex rel. Hjelle v. 1973 Brockway Tractor, 299 N.W.2d 557, 1980 N.D. LEXIS 298 (N.D. 1980).

Release of Vehicle.

When a cash bond is furnished, the vehicle is released from impoundment but the jurisdiction of the court continues over both the cash and the vehicle (N.D.C.C. § 39-12-18) even though the vehicle has been released. Wentz v. One White Tractor, 110 N.W.2d 178, 1961 N.D. LEXIS 78 (N.D. 1961).

A vehicle carrying excess weight must remain impounded until a cash bond is furnished. Wentz v. One White Tractor, 110 N.W.2d 178, 1961 N.D. LEXIS 78 (N.D. 1961).

Vehicle must be held until trial to preserve the court’s jurisdiction over it, unless a cash bond is furnished, in which case the vehicle is released and the court’s jurisdiction continues over both the cash and the vehicle; cash deposit sufficiently satisfied the cash bond requirement and court’s jurisdiction continued over the vehicle and the cash after release of the impounded vehicle where the deposit was made as a condition for release. State ex rel. Hjelle v. 1973 Brockway Tractor, 299 N.W.2d 557, 1980 N.D. LEXIS 298 (N.D. 1980).

39-12-12. Impounding receipt — Information.

A receipt must be given by the officer impounding the vehicle, to the driver or person in charge of such vehicle. Such receipt must identify as nearly as possible, the owner of the vehicle and cargo, the driver or person in charge of such vehicle, the cargo, the place the vehicle is to be stored during impoundment, the weight of the loaded vehicle and the name and address of the impounding officer. Information as to the owner of the vehicle and cargo must be obtained from the driver or person in charge of the vehicle.

Source:

S.L. 1955, ch. 257, § 2; R.C. 1943, 1957 Supp., § 39-1212.

Notes to Decisions

Failure to Issue Receipt.

Where truck was in legal custody from the time it was stopped until after it was released upon receipt of a cash deposit, there was an impoundment of the truck giving court jurisdiction over it despite fact that no impoundment receipt was issued. State ex rel. Hjelle v. 1973 Brockway Tractor, 299 N.W.2d 557, 1980 N.D. LEXIS 298 (N.D. 1980).

39-12-13. Impounding notice — Perishables.

The impounding officer shall notify the owner or owners, if they can be found, by wire or telephone, of the impoundment and the charges involved. If the cargo consists of perishables, the impounding officer shall use reasonable diligence in assisting the operator or owner in finding suitable storage facilities for such perishables, but all risk of loss or damage to such perishables must be upon the owner, operator, or lessee of such vehicle.

Source:

S.L. 1955, ch. 257, § 3; R.C. 1943, 1957 Supp., § 39-1213.

39-12-14. Civil complaint.

The state’s attorney of the county where such vehicles are impounded, shall, if no settlement is made under section 39-12-14.1, immediately prepare and file a civil complaint on behalf of the authority having jurisdiction of the road whereon the violation occurred, for the purpose of recovering charges for the extraordinary use of the highways, streets, or roads of this state.

Source:

S.L. 1955, ch. 257, § 4; R.C. 1943, 1957 Supp., § 39-1214; S.L. 1985, ch. 441, § 1.

Notes to Decisions

Procedure.

The procedure provided by N.D.C.C. § 39-12-11 to 39-12-22 for impounding of vehicle operated on highway at a weight in excess of weight limitations, is one in rem in which the highway commissioner may be termed plaintiff and the vehicle is both the res and the defendant. Wentz v. One White Tractor, 110 N.W.2d 178, 1961 N.D. LEXIS 78 (N.D. 1961).

The procedures provided by N.D.C.C. §§ 39-12-11 to 39-12-22 must be followed by impounding officers and the courts. Wentz v. One White Tractor, 110 N.W.2d 178, 1961 N.D. LEXIS 78 (N.D. 1961).

39-12-14.1. Voluntary settlement of extraordinary road use fee charges.

Before the complaint is issued under section 39-12-14, the owner, or the owner’s driver or agent, may voluntarily pay the amount of the extraordinary road use fee, or may provide proof of surety coverage to ensure payment of the extraordinary road use fee, provided under section 39-12-17, plus any towing or storage costs. Any settlement, whether made by the owner, or the owner’s driver or agent, is presumed to be voluntary. A peace officer or a peace officer’s designee is authorized to receive the settlement payment on behalf of the authority having jurisdiction over the road on which the violation occurred. The extraordinary road use fees for a violation on an interstate or on a state highway must be deposited with the state treasurer to be credited to the state highway fund. Extraordinary road use fees for a violation that did not occur on an interstate or a state highway must be deposited in the general fund of the jurisdiction having authority over the road on which the violation occurred and must be used for the support of the road system of that jurisdiction.

Source:

S.L. 1985, ch. 441, § 4; 1987, ch. 475, § 2; 2011, ch. 286, § 1; 2013, ch. 306, § 1; 2017, ch. 273, § 1, effective July 1, 2017.

Note.

Section 3 of chapter 306, S.L. 2013 provides: “ EXPIRATION DATE. This Act is effective through June 30, 2017, and after that date is ineffective.”

39-12-15. Mailing complaint.

A copy of the complaint must be served upon the driver or person in charge of the vehicle and a copy must be sent by registered or certified mail to the owner of the vehicle, if the address of such owner is known.

Source:

S.L. 1955, ch. 257, § 5; R.C. 1943, 1957 Supp., § 39-1215.

39-12-16. Cash bond — Holding.

Unless a cash bond is furnished in an amount sufficient to cover the charges for extraordinary use of highways, streets, and roads, as provided in section 39-12-18, together with the costs which may be collectible under any subsequent settlement made pursuant to section 39-12-14.1, said vehicle must be held until a trial of the case can be had before the district court.

Source:

S.L. 1955, ch. 257, § 6; R.C. 1943, 1957 Supp., § 39-1216; S.L. 1985, ch. 441, § 2.

Notes to Decisions

Cash Deposit.

Cash deposit sufficiently satisfied the cash bond requirement and court’s jurisdiction continued over the vehicle and the cash after release of the impounded vehicle where the deposit was made as a condition for release. State ex rel. Hjelle v. 1973 Brockway Tractor, 299 N.W.2d 557, 1980 N.D. LEXIS 298 (N.D. 1980).

Jurisdiction.

Vehicle must be held until trial to preserve the court’s jurisdiction over it, unless a cash bond is furnished, in which case the vehicle is released and the court’s jurisdiction continues over both the cash and the vehicle. State ex rel. Hjelle v. 1973 Brockway Tractor, 299 N.W.2d 557, 1980 N.D. LEXIS 298 (N.D. 1980).

39-12-17. Trial — Charges.

At the trial of the action, the court shall hear testimony concerning the facts and if it is found that such vehicle or vehicles were moved upon the highways, streets, or roads of this state at a weight in excess of the limitations imposed under the provisions of section 39-12-03 or as limited by the provisions of section 39-12-05, charges for the extraordinary use of the highways, streets, or roads must be assessed as follows:

  1. The storage charges and costs of the action must be assessed; and
  2. An additional charge must be assessed as follows:

1 to 1,000 pounds [.45 to 453.59 kilograms] of excess weight = $20 1,001 to 2,000 pounds [454.05 to 907.18 kilograms] of excess weight = $40 2,001 to 3,000 pounds [907.64 to 1360.78 kilograms] of excess weight = $60 3,001 to 4,000 pounds [1361.23 to 1814.37 kilograms] of excess weight = $140 4,001 to 5,000 pounds [1814.82 to 2267.96 kilograms] of excess weight = $220 5,001 to 6,000 pounds [2268.41 to 2721.55 kilograms] of excess weight = $305 6,001 to 7,000 pounds [2722.01 to 3175.14 kilograms] of excess weight = $380 7,001 to 8,000 pounds [3175.60 to 3628.74 kilograms] of excess weight = $495 8,001 to 9,000 pounds [3629.19 to 4082.33 kilograms] of excess weight = $575 9,001 to 10,000 pounds [4082.78 to 4535.92 kilograms] of excess weight = $655 10,001 to 11,000 pounds [4536.37 to 4989.51 kilograms] of excess weight = $1,100 11,001 to 12,000 pounds [4989.97 to 5443.10 kilograms] of excess weight = $1,200 12,001 to 13,000 pounds [5443.56 to 5896.70 kilograms] of excess weight = $1,300 13,001 to 14,000 pounds [5897.15 to 6350.29 kilograms] of excess weight = $1,680 14,001 to 15,000 pounds [6350.74 to 6803.88 kilograms] of excess weight = $1,800 15,001 to 16,000 pounds [6804.33 to 7257.47 kilograms] of excess weight = $1,920 16,001 to 17,000 pounds [7257.93 to 7711.06 kilograms] of excess weight = $2,550 17,001 to 18,000 pounds [7711.52 to 8164.66 kilograms] of excess weight = $2,700 18,001 to 19,000 pounds [8165.11 to 8618.25 kilograms] of excess weight = $2,850 19,001 to 20,000 pounds [8618.70 to 9071.84 kilograms] of excess weight = $3,000 20,001 to 21,000 pounds [9072.29 to 9525.43 kilograms] of excess weight = $4,200 21,001 to 22,000 pounds [9525.89 to 9979.02 kilograms] of excess weight = $4,400 22,001 to 23,000 pounds [9979.48 to 10432.62 kilograms] of excess weight = $4,600 23,001 to 24,000 pounds [10433.07 to 10886.21 kilograms] of excess weight = $4,800 24,001 to 25,000 pounds [10886.66 to 11339.80 kilograms] of excess weight = $5,000 25,001 to 26,000 pounds [11340.25 to 11793.40 kilograms] of excess weight = $5,200 26,001 to 27,000 pounds [11793.86 to 12246.99 kilograms] of excess weight = $5,400 27,001 to 28,000 pounds [12247.45 to 12700.59 kilograms] of excess weight = $5,600 28,001 to 29,000 pounds [12701.04 to 13154.18 kilograms] of excess weight = $5,800 29,001 to 30,000 pounds [13154.63 to 13607.77 kilograms] of excess weight = $6,000 An additional charge of $200 for every 1,000-pound [453.59-kilogram] increase over 30,000 pounds [13607.77 kilograms] consistent with the above formula.

Click to view

Source:

S.L. 1955, ch. 257, § 7; R.C. 1943, 1957 Supp., § 39-1217; S.L. 1981, ch. 399, § 2; 2003, ch. 319, § 7.

Notes to Decisions

Charges.

The charge under this section is for extraordinary use of the highway, not for actual damage, and there is no burden on state to prove actual damage; the charge is not assessed on the basis of the number of miles driven on the road, but is assessed on a pro rata basis for exceeding the legal weight restrictions. State ex rel. Hjelle v. 1973 Brockway Tractor, 299 N.W.2d 557, 1980 N.D. LEXIS 298 (N.D. 1980).

Fines for Violation of State Laws.

The phrase “fines for violation of state laws” referred to in N.D. Const., Art. IX, § 2 does not encompass civil penalties such as overweight vehicle charges. State ex rel. Backes v. Motor Vehicle, 492 N.W.2d 595, 1992 N.D. LEXIS 238 (N.D. 1992).

Movement.

Movement of a vehicle at the direction of a police officer pursuant to N.D.C.C. § 39-12-07 does not constitute movement for purposes of a violation of N.D.C.C. § 39-12-17. Stark County v. 1998 Peterbuilt Truck, 2013 ND 170, 837 N.W.2d 390, 2013 N.D. LEXIS 176 (N.D. 2013).

District court’s finding that defendant vehicle had not been moved was not clearly erroneous. A violation of N.D.C.C. § 39-12-17 was not established in the testimony presented to the district court. Stark County v. 1998 Peterbuilt Truck, 2013 ND 170, 837 N.W.2d 390, 2013 N.D. LEXIS 176 (N.D. 2013).

39-12-18. Payment of charges — Confiscation — Sale.

If the charges and costs as provided in section 39-12-17 are not paid immediately from a cash bond previously posted or other cash payment, the judge shall order the vehicle confiscated and sold by the sheriff of the county at a public sale to the highest bidder and the proceeds applied to the payment of the charges and costs assessed under the provisions of sections 39-12-11 through 39-12-22.

Source:

S.L. 1955, ch. 257, § 8; R.C. 1943, 1957 Supp., § 39-1218.

Notes to Decisions

Money Judgment.

In proceeding by highway commissioner to recover charges for extraordinary use of highways, following impoundment of vehicle carrying excess weight, money judgment against vehicle with further provision that the plaintiff was entitled to have it “paid from the bond posted to release the truck” was void where at the time of the judgment no cash bond had been previously posted nor was the vehicle in the custody of the court. Wentz v. One White Tractor, 110 N.W.2d 178, 1961 N.D. LEXIS 78 (N.D. 1961).

Procedure.

A proceeding under N.D.C.C. §§ 39-12-11 to 39-12-22 is a proceeding in rem and being purely statutory the statutory procedures must be followed by impounding officers and the court. Wentz v. One White Tractor, 110 N.W.2d 178, 1961 N.D. LEXIS 78 (N.D. 1961).

39-12-19. Payment — Effect.

The payment of charges may not be construed as a payment for the future use of highways, streets, or roads by vehicles carrying excess loads.

Source:

S.L. 1955, ch. 257, § 9; R.C. 1943, 1957 Supp., § 39-1219.

39-12-20. Proceeds of sale — Continuing appropriation.

The proceeds of sale must be deposited with the state treasurer. For a violation on an interstate or a state highway, the state treasurer shall deposit in the state highway fund an amount equal to the amount of the charges assessed under section 39-12-17 after paying the costs to the county. For any violation, an amount equal to the costs of the proceedings, including attorney’s and witness fees and costs, is appropriated on a continuing basis out of the funds collected to the county of prosecution for the purpose of defraying the costs of prosecution. From the proceeds of sale for a violation that did not occur on an interstate or a state highway, the amount of charges assessed under section 39-12-17 is appropriated on a continuing basis and must be deposited in the general fund in the jurisdiction in which the violation occurred and must be used for the support of the road system of that jurisdiction. The balance of the proceeds of any sale after the payment of costs and charges is appropriated on a continuing basis out of the funds collected to be paid to the person entitled to the proceeds as determined by the court or must be deposited with the clerk of court for payment to that person.

Source:

S.L. 1955, ch. 257, § 10; R.C. 1943, 1957 Supp., § 39-1220; S.L. 1985, ch. 441, § 3; 1999, ch. 37, § 27; 2013, ch. 306, § 2; 2017, ch. 273, § 2, effective July 1, 2017.

Note.

Section 3 of chapter 306, S.L. 2013 provides: “ EXPIRATION DATE. This Act is effective through June 30, 2017, and after that date is ineffective.”

Notes to Decisions

Constitutionality.

This section and N.D.C.C. § 24-02-41 are not in violation of the provisions of N.D. Const., Art. IX, § 2. State ex rel. Backes v. Motor Vehicle, 492 N.W.2d 595, 1992 N.D. LEXIS 238 (N.D. 1992).

39-12-21. Penalty.

Any driver of a vehicle who refuses to stop and submit the vehicle and load to a weighing when directed to do so by any police officer or any agent of this state having police powers relating to motor vehicles is guilty of a class B misdemeanor.

Source:

S.L. 1955, ch. 257, § 11; R.C. 1943, 1957 Supp., § 39-1221; S.L. 1975, ch. 106, § 440.

Cross-References.

Classification of offenses, penalties, see § 12.1-32-01.

39-12-22. Permissible loads — Exceptions.

When any motor truck, truck tractor, or trailer is operated upon the public highways of this state carrying a load in excess of the maximum prescribed under the provisions of sections 39-12-03 and 39-12-05 or other maximum weight limitations prescribed by law, the load must be reduced or shifted to within such maximum limitations before being permitted to operate on any public highway of this state; provided, however, that any such vehicle carrying a load of livestock is exempt from the limitations prescribed in section 39-12-05.3, relating to the carrying capacity of any wheel, tire, axle, or group of axles when excessive weight is caused by a shifting of the weight of the livestock. All material unloaded as required by this section must be cared for by the owner or operator of such vehicle at the risk of such owner or operator.

Source:

S.L. 1955, ch. 257, § 12; R.C. 1943, 1957 Supp., § 39-1222; 2021, ch. 280, § 5, effective August 1, 2021.

39-12-23. Governor’s order authorizing excess limits.

The governor of this state is hereby authorized, by order of general application, to permit and prescribe definite excess limitations as to size and weight for the operation of motor vehicles in emergencies and to meet unusual conditions for the general welfare of the public.

The operation of such vehicles, in accordance with the governor’s order, does not constitute a violation of the statutes relative to limitations on sizes and weights.

Source:

S.L. 1957, ch. 269, §§ 1, 2; R.C. 1943, 1957 Supp., § 39-1223.

39-12-24. Authority for cooperative regional permit agreements on excess size or weight vehicles. [Repealed]

Source:

S.L. 2011, ch. 287, § 1; repealed by 2021, ch. 280, § 7, effective August 1, 2021.

39-12-25. Bank of North Dakota — Line of credit. [Repealed]

Source:

S.L. 2011, ch. 284, § 3; repealed by 2021, ch. 280, § 7, effective August 1, 2021.

CHAPTER 39-13 Traffic Signs

39-13-01. Uniform marking and erection of signs on highway. [Repealed]

Repealed by S.L. 1953, ch. 177, § 120.

Note.

For present provisions, see §§ 39-13-06 to 39-13-08.

39-13-02. Local traffic signs. [Repealed]

Repealed by S.L. 1975, ch. 353, § 4.

39-13-03. Local parking regulations not enforceable where sign illegible or not in proper position.

Local parking and other special regulations are not enforceable against an alleged violator if, at the time and place of the alleged violation, an appropriate sign giving notice thereof is not in proper position and sufficiently legible to be seen by an ordinarily observant person.

Source:

S.L. 1927, ch. 162, § 58; R.C. 1943, § 39-1303; S.L. 1967, ch. 312, § 1; 1975, ch. 349, § 40.

39-13-04. Traffic signs erected by unauthorized persons prohibited — Traffic signs containing advertising prohibited. [Repealed]

Repealed by S.L. 1975, ch. 347, § 25.

39-13-05. Injuring signs prohibited.

No person may deface, injure, knock down, or remove any sign posted as provided in this chapter.

Source:

S.L. 1927, ch. 162, § 60; R.C. 1943, § 39-1305.

Collateral References.

Private person’s negligent interference with traffic signs or signals, 64 A.L.R.2d 1364.

39-13-06. Authority to adopt manual on uniform traffic-control devices.

The director shall adopt a manual and specifications for a uniform system of traffic-control devices, consistent with the provisions of law, for use upon all highways and streets in this state. Such uniform system must correlate with and so far as possible conform to the system set forth in the most recent edition of the manual promulgated as a national standard by the federal highway administrator.

Source:

S.L. 1975, ch. 353, § 1.

39-13-07. Uniform traffic-control devices on all streets and highways.

No traffic-control devices, including markings, signs, and signals, may be used on any street or highway which do not conform to the standards of design and location as prescribed in the manual and specifications for a uniform system of traffic-control devices. The director and local authorities, on streets and highways under their respective jurisdiction, shall place such devices as are deemed necessary to regulate, warn, and guide traffic.

Source:

S.L. 1975, ch. 353, § 2.

Collateral References.

Motorist’s liability for collision at intersection of ordinary and arterial highways as affected by absence, displacement, or malfunctioning of stop sign or other traffic signal, 74 A.L.R.2d 242.

Highway authority’s liability arising out of motor vehicle accident allegedly caused by failure to erect or properly maintain traffic control device at intersection, 34 A.L.R.3d 1008.

39-13-08. No traffic-control device to be manufactured or sold which does not conform.

No person, firm, corporation, or limited liability company may sell or offer for sale to street and highway authorities, and no such authorities may purchase or manufacture any traffic-control device which does not conform to the manual unless specifically approved by the director.

Source:

S.L. 1975, ch. 353, § 3; 1993, ch. 54, § 106.

39-13-09. Tourist-oriented directional signs.

  1. In this section:
    1. “Tourist-oriented directional sign” means a sign providing identification of and directional information for tourist-related businesses, services, or activities.
    2. “Tourist-related business, service, or activity” means rural agricultural business and tourism attractions, including recreation, historical sites, festival and cultural events, lodging and food services which are singularly and uniquely related to historical, cultural, or recreational tourist attractions, and guide services, but does not include any business operated under a franchise agreement. The term includes a business that derives a major portion of income or visitors from individuals who do not reside in the immediate area of the business. The immediate area of the business is within the city limits in which the business is located, or within one mile [1.61 kilometers] from the business if located outside city limits.
  2. Notwithstanding section 24-01-12, the department shall establish by rule standards for the erection and maintenance of tourist-oriented directional signs. The rules must conform to federal standards for tourist-oriented directional signs adopted under 23 U.S.C. 131(q) as of July 1, 1991, and with the manual adopted by the department under section 39-13-06 except that the rules must provide that logos may not be used on tourist-oriented directional signs.
  3. Upon the request of any person, a local authority that has adopted an ordinance permitting the erection of tourist-oriented directional signs may authorize their erection within the right of way of any highway under the jurisdiction of the local authority except that tourist-oriented directional signs may not be erected within the right of way of the interstate highway system. A tourist-oriented directional sign may not be erected unless it is erected in compliance with rules adopted by the department for such signs.
  4. The permit applicant shall engage a qualified contractor for the erection, installation, and maintenance of tourist-oriented directional signs within the right of way of any highway under the jurisdiction of the department except that tourist-oriented directional signs may not be erected within the right of way of the interstate highway system. A tourist-oriented directional sign may not be erected unless it is erected in compliance with rules adopted by the department for such signs.

Source:

S.L. 1991, ch. 428, § 1; 1993, ch. 392, § 1; 1999, ch. 354, § 1; 2007, ch. 336, § 1.

CHAPTER 39-14 Financial Responsibility of Owners and Operators [Repealed]

[Repealed by S.L. 1947, ch. 256, § 38]

Note.

For present law, see chs. 39-16, 39-16.1.

CHAPTER 39-15 Guest Law [Repealed]

[Repealed by S.L. 1979, ch. 187, § 108]

Note.

Former guest statute was held unconstitutional with prospective effect in Johnson v. Hassett, 217 N.W.2d 771, 1974 N.D. LEXIS 245 (N.D. 1974).

CHAPTER 39-16 Financial Responsibility of Owners and Operators

39-16-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Commissioner” or “director” means the director of the department of transportation of this state as provided by section 24-02-01.3, acting directly or through authorized agents.
  2. “Driver” means every person who is in actual physical control of a motor vehicle whether or not licensed as a driver under the laws of this state.
  3. “Judgment” means any judgment which has become final by expiration without appeal of the time within which an appeal might have been perfected, or by final affirmation on appeal, rendered by a court of competent jurisdiction of any state of the United States, upon a claim for relief arising out of ownership, maintenance, or use of any motor vehicle, for damages, including damages for care and loss of services, because of bodily injury to or death of any person, or for damages because of injury to or destruction of property, including the loss of use thereof, or upon a claim for relief on an agreement of settlement for such damages.
  4. “License” means any license, temporary instruction permit, or temporary license issued under the law of this state pertaining to the licensing of persons to operate motor vehicles.
  5. “Motor vehicle” includes every self-propelled vehicle, including trailers and semitrailers designed for use with these vehicles. The term does not include special mobile equipment or an electric bicycle.
  6. “Nonresident” means every person who is not a resident of this state.
  7. “Nonresident’s operating privilege” means the privilege conferred upon a nonresident by the laws of this state pertaining to the operation in this state by that person of a motor vehicle, or the use of a motor vehicle owned by that person.
  8. “Owner” means a person who holds the legal title of a motor vehicle, or in the event a motor vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the condition stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee, or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor must be deemed the owner for the purposes of this chapter.
  9. “State” means any state, territory, or possession of the United States, the District of Columbia, or any province of the Dominion of Canada.

Source:

S.L. 1947, ch. 256, § 1; R.C. 1943, 1957 Supp., § 39-1601; S.L. 1959, ch. 299, § 1; 1967, ch. 313, § 3; 1985, ch. 82, § 100; 1989, ch. 72, § 14; 2015, ch. 270, § 2, effective April 16, 2015; 2021, ch. 278, § 5, effective August 1, 2021.

Effective Date.

The 2015 amendment of this section by section 2 of chapter 270, S.L. 2015 became effective April 16, 2015, pursuant to an emergency clause in section 3 of chapter 270, S.L. 2015.

Note.

Section 24-02-01.2, as enacted by section 2 of chapter 72, S.L. 1989, effective January 1, 1990, provides that the department of transportation and director of the department of transportation be substituted for motor vehicle department, registrar of motor vehicles, highway department, and highway commissioner.

Notes to Decisions

Family Exclusion Clause Void.

Inclusion in motor vehicle policy of restrictive limitation on class of potential beneficiaries through “household, or family, exclusion clause” was void as violative of public policy and financial responsibility laws of North Dakota. Hughes v. State Farm Mut. Auto. Ins. Co., 236 N.W.2d 870, 1975 N.D. LEXIS 143 (N.D. 1975).

In order for a motor vehicle liability policy purchased to avoid the sanctions in N.D.C.C. § 39-16-05, it must provide the named insured, and any other person using the insured motor vehicle with permission of the named insured, with minimum coverage for damages arising out of the ownership, maintenance, or use of the insured motor vehicle. Therefore, a “household or family exclusion” clause violated the financial responsibility laws and public policy because that clause excluded coverage for a class of beneficiaries suffering damages arising out of the ownership, maintenance, or use of the insured motor vehicle. State Farm Mut. Auto. Ins. Co. v. LaRoque, 486 N.W.2d 235, 1992 N.D. LEXIS 147 (N.D. 1992).

Legislative Intent.

The financial responsibility laws of North Dakota do not evidence a clear public policy that a motor vehicle liability policy cover the named insured for every automobile that the insured might drive. Instead, North Dakota financial responsibility laws demonstrate a legislative intent to allow insurance companies to insure fewer than all vehicles driven by an insured. State Farm Mut. Auto. Ins. Co. v. LaRoque, 486 N.W.2d 235, 1992 N.D. LEXIS 147 (N.D. 1992).

Purpose.

The basic purpose of this chapter and N.D.C.C. ch. 39-16.1, is to protect innocent victims of motor vehicle accidents from financial disaster. State Farm Mut. Auto. Ins. Co. v. LaRoque, 486 N.W.2d 235, 1992 N.D. LEXIS 147 (N.D. 1992).

The license suspension sanctions imposed by this chapter were intended to guarantee financial responsibility for a first accident, in contrast to the requirements of N.D.C.C. ch. 39-16.1, which were designed to establish proof of financial responsibility for future accidents involving a motor vehicle owner or operator who has already had an accident, or who has been convicted of certain traffic offenses. State Farm Mut. Auto. Ins. Co. v. LaRoque, 486 N.W.2d 235, 1992 N.D. LEXIS 147 (N.D. 1992).

Collateral References.

Joinder of insurer and insured under policy of compulsory indemnity or liability insurance in action by third person, 20 A.L.R.2d 1097.

Presumption and prima facie case as to ownership of vehicle causing highway accident, 27 A.L.R.2d 167.

Liability of insurer under compulsory statutory vehicle liability policy, to injured third persons, notwithstanding insured’s failure to comply with policy conditions, as measured by policy limits or by limits of Financial Responsibility Act, 29 A.L.R.2d 817.

Construction and effect of exclusionary clause in automobile liability policy making policy inapplicable where vehicle is used as “public or livery conveyance”, 30 A.L.R.2d 273.

Trailers as affecting automobile insurance, , 65 A.L.R.3d 804.

Failure to give notice, or other lack of cooperation by insured, as defense to action against compulsory liability insurer by injured member of public, 31 A.L.R.2d 645.

Effect of provision of liability policy covering hired automobiles but excluding from definition of “insured” the owner of such vehicle or his employee, 32 A.L.R.2d 572.

Validity of Motor Vehicle Financial Responsibility Act, 35 A.L.R.2d 1011.

Operator’s liability policy issued in compliance with financial responsibility statute, 88 A.L.R.2d 995.

Insured’s first accident, policy provision extending coverage to comply with Financial Responsibility Act as applicable to, 8 A.L.R.3d 388.

Temporary automobile insurance pending issuance of policy, 12 A.L.R.3d 1304.

Construction and application of “automatic insurance” or “newly acquired vehicle” clause (“replacement,” and “blanket,” or “fleet” provisions) contained in automobile liability policy, 39 A.L.R.4th 229.

Construction and application of substitution provision of automobile liability policy, 42 A.L.R.4th 1145.

Cancellation of compulsory or “financial responsibility” automobile insurance, 44 A.L.R.4th 13.

Validity, construction, application, and effect of statute requiring conditions, in addition to expiration of time, for reinstatement of suspended or revoked driver’s license, 2 A.L.R.5th 725.

39-16-02. Rules — Notice of proposed suspension.

The director shall have the powers and perform the duties imposed by this chapter and may make rules for that purpose. Notice of a proposed suspension under this chapter must be given under section 39-06-33.

Source:

S.L. 1947, ch. 256, § 2; R.C. 1943, 1957 Supp., § 39-1602; S.L. 1987, ch. 461, § 3.

39-16-03. Driving records — Not admissible in evidence — Fee.

  1. The director upon request shall furnish any person a certified abstract of the operating record of any individual, source document for the abstract entry, or record of clearance, subject to this title. The abstract must include the convictions, adjudications, and admissions of commission of traffic offenses of any driver and suspensions, revocations, and restrictions of an individual’s operator’s license. Any person, except the subject of the record, a law enforcement agency, a judicial officer, or another licensing jurisdiction functioning in that person’s official capacity, requesting the abstract, source documents in aggregate form, or record of clearance shall indicate in writing the reason for the request and shall identify the person for whom or which the request is made and the intended recipient of the record.
  2. Copies of abstracts are not admissible as evidence in any civil or criminal trial arising out of a motor vehicle accident. Upon request and subject to the provisions of this title, the director shall furnish an operating record or complete operating record to the subject of the record or to law enforcement or judicial officers.
  3. A fee of three dollars must be paid for each abstract of any operating record, operating record, complete operating record, or record of clearance. A reasonable fee must be paid for each source document. The director may not assess a fee to a law enforcement agency, a judicial officer, or another licensing jurisdiction. The director shall send an additional copy of the abstract, source document if requested in aggregate form, or record of clearance to the driver whose record was requested, accompanied by a statement identifying the person making the request, identifying the person for whom or which the request is made, identifying the intended recipient of the record, and providing the reason for the request. An additional copy of the abstract or record of clearance may not be sent to a driver if the request for the record was made by the federal bureau of investigation or the United States central intelligence agency, or agents, or by any law enforcement agency or judicial officer.
  4. A requester may provide the department with a list of names of drivers and may request any source documents from the department relating to the listed drivers for a set time period. The department shall provide this information in hard copy or electronic format. If in order to provide the information by electronic format the department sets up a computer program, the department may charge a requester a reasonable charge for a setup fee. This charge may not exceed the actual cost to set up the computer program. A requester of source documents in aggregate form shall pay the director a reasonable fee for making and mailing to the driver whose record was requested an additional copy of the document as it relates to that driver.

Source:

S.L. 1947, ch. 256; § 3; R.C. 1943, 1957 Supp., § 39-1603; S.L. 1967, ch. 308, § 3; 1971, ch. 377, § 1; 1973, ch. 308, § 1; 1977, ch. 365, § 1; 1983, ch. 435, § 2; 1989, ch. 460, § 6; 1989, ch. 473, § 1; 1991, ch. 413, § 3; 1995, ch. 372, § 6; 1999, ch. 355, § 1; 2013, ch. 291, § 61.

Note.

Section 2 of chapter 355, S.L. 1999 provides:

RETROACTIVE APPLICATION OF ACT. This act is retroactive in application.”

Cross-References.

Nondriver photo identification card, release of information, see § 39-06-03.1.

Records of department open to public inspection, see § 39-02-05.

Notes to Decisions

Applicability.

Insurance support organization’s request that Department of Transportation provide a monthly report listing the names of drivers who had accumulated traffic citations in the previous month, together with each driver’s license number, date of conviction, and a description of the violation was a request for public records for which the Department could charge a reasonable fee under N.D.C.C. § 44-04-18, and not a request for a certified abstract of a driver’s operating record under this section. Robot Aided Mfg., Inc. v. Moore, 1999 ND 14, 589 N.W.2d 187, 1999 N.D. LEXIS 2 (N.D. 1999).

39-16-03.1. Entries on driver’s record abstract confidential.

Notwithstanding any other provision of this chapter, the following entries on a driver’s record or abstract are not available to the public, except for statistical purposes, other than by order of a court of competent jurisdiction accompanied by a fee of twenty-five dollars:

  1. An entry more than three years old.
  2. After the period of suspension ceases, an entry concerning a suspension under subsection 3, 4, 5, or 6 of section 39-06-03 or subsection 2, 5, or 6 of section 39-06-32.
  3. An entry concerning a suspension as the result of a person under twenty-one years of age who has an alcohol concentration of at least two one-hundredths of one percent but under eight one-hundredths of one percent by weight within two hours after driving or being in actual physical control of a vehicle.

Source:

S.L. 1967, ch. 314, § 1; 1973, ch. 308, § 2; 1995, ch. 372, § 7; 1999, ch. 356, § 1; 2005, ch. 330, § 4; 2015, ch. 268, § 8, effective April 15, 2015.

Effective Date.

The 2015 amendment of this section by section 8 of chapter 268, S.L. 2015 became effective April 15, 2015, pursuant to an emergency clause in section 15 of chapter 268, S.L. 2015.

39-16-04. Suspension of license for neglect to report accident.

The director may suspend the license, or any nonresident’s operating privilege, of any person who willfully fails, refuses, or neglects to make report of a traffic accident as required by the laws of this state.

Source:

S.L. 1947, ch. 256, § 4; R.C. 1943, 1957 Supp., § 39-1604.

39-16-05. Suspension of license and when not applicable.

  1. The director, within ninety days after the receipt of a report of a motor vehicle accident within this state for which a driver is required to file a report under section 39-08-09, shall suspend the license or nonresident operating privilege of each driver of each vehicle in any manner involved in the accident unless the driver deposits security as provided in sections 39-16-09 and 39-16-10 in a sum which is sufficient in the judgment of the director to satisfy any judgment or judgments for damages resulting from the accident as may be recovered against such driver. Notice of suspension and opportunity for hearing must be sent by the director to the driver not less than ten days prior to the effective date of the suspension and must state the amount required as security. However, if a driver, either resident or nonresident, involved in the accident purchases an insurance policy with at least the amount of coverage required by this section, and files proof and satisfies financial responsibility requirements thereof with the director, that driver may retain the license or privilege until the driver has accepted responsibility for the accident or agreed to a settlement of claims arising from the accident or until a court of this state has determined that the driver was negligent or responsible for the accident in whole or in part. If the driver is found negligent or responsible for the accident, in whole or in part, the license or privilege must be suspended and will not be returned until the driver complies with this chapter.
  2. This section does not apply under the conditions stated in section 39-16-06, or:
    1. To a driver, if the driver is the owner of the motor vehicle involved in the accident and had in effect at the time of such accident an automobile liability policy with respect to the motor vehicle involved in the accident, affording substantially the same coverage as is required for proof of financial responsibility under chapter 39-16.1.
    2. To a driver, if not the owner of the motor vehicle, if there was in effect at the time of the accident an automobile liability policy or bond with respect to the driver’s operation of the motor vehicle, affording substantially the same coverage as required for proof of financial responsibility under chapter 39-16.1.
    3. To a driver, if the liability of the driver for damages resulting from the accident is, in the judgment of the director, covered by any other form of liability insurance policy or bond or certificate of self-insurance under section 39-16-32.
  3. No such policy or bond is effective under this section unless by an insurance carrier or surety company authorized to do business in this state, except that if the motor vehicle was not registered in the state, or was a motor vehicle which was registered elsewhere than in this state at the effective date of the policy or bond, or the most recent renewal thereof, the policy or bond is not effective under this section unless the insurance carrier or surety company, if not authorized to do business in this state, shall execute a power of attorney authorizing the director to accept service, on its behalf, of notice or process in any action upon the policy or bond arising out of the accident; provided, every such policy or bond is subject, if the accident has resulted in bodily injury or death, to a limit, exclusive of interest and costs, of not less than twenty-five thousand dollars because of bodily injury to or death of one person in any one accident and, subject to the limit for one person, to a limit of not less than fifty thousand dollars because of bodily injury to or death of two or more persons in any one accident, and, if the accident has resulted in injury to or destruction of property to a limit of at least twenty-five thousand dollars because of injury to or destruction of property of others in any one accident. Upon receipt of notice of the accident, the insurance carrier or surety company which issued the policy or bond shall furnish for filing with the director a written notice that the policy or bond was in effect at the time of the accident, or the department may rely upon the accuracy of the information and the required report of an accident as to the existence of insurance or a bond unless and until the department has reason to believe that the information is erroneous.

Source:

S.L. 1947, ch. 256, § 5; 1949, ch. 255, § 1; 1957, ch. 272, § 1; R.C. 1943, 1957 Supp., § 39-1605; S.L. 1959, ch. 299, § 2; 1967, ch. 313, § 1; 1971, ch. 378, § 1; 1973, ch. 309, § 1; 1979, ch. 404, § 2; 1979, ch. 405, § 9; 1979, ch. 425, § 1; 1985, ch. 317, § 70; 1985, ch. 435, § 3; 1985, ch. 442, § 1; 1987, ch. 479, § 1; 1995, ch. 372, § 8.

Notes to Decisions

Misrepresentation.

Insurer could not rescind insurance policy issued to insured who voluntarily purchased it to avoid the sanctions of this section after an accident on the basis of his material misrepresentation of ownership of the automobile. Richard v. Fliflet, 370 N.W.2d 528, 1985 N.D. LEXIS 342 (N.D. 1985).

Omnibus Coverage Required.

All policies of liability insurance used to satisfy security requirements of this section must contain same omnibus coverage defined by N.D.C.C. § 39-16.1-11. Hughes v. State Farm Mut. Auto. Ins. Co., 236 N.W.2d 870, 1975 N.D. LEXIS 143 (N.D. 1975).

All motor vehicle liability policies used to satisfy the sanctions of this section must contain the minimum limits and the same omnibus coverage required by N.D.C.C. § 39-16.1-11. Otherwise, the coverage would not be “substantially the same” as coverage required by N.D.C.C. ch. 39-16.1, as that phrase is used in this section. Richard v. Fliflet, 370 N.W.2d 528, 1985 N.D. LEXIS 342 (N.D. 1985).

Where the insured’s son was injured while driving his father’s truck, he filed suit against the insurance company seeking a payment of benefits under the underinsured motorist (UIM) provisions of a commercial auto insurance policy; the insurance company claimed that there was no coverage based on the insured’s alleged material misrepresentations made to obtain the insurance policy, fraud, concealment, and collusion. The district court erred by granting summary judgment for the insurance company; there was a genuine issue of material fact as to whether N.D.C.C. § 39-16.1-11(6)(a) prohibited cancellation of the policy, because the son was an injured innocent third party and UIM coverage was mandatory under the financial responsibility laws as set forth in N.D.C.C. § 39-16-05. Kambeitz v. Acuity Ins. Co., 2009 ND 166, 772 N.W.2d 632, 2009 N.D. LEXIS 177 (N.D. 2009).

39-16-06. When requirements as to security and suspension do not apply.

The requirements as to security and suspension in section 39-16-05 do not apply:

  1. To the driver of a motor vehicle involved in an accident wherein no injury or damage was caused to the person or property of any one other than such driver.
  2. To the driver of a motor vehicle if at the time of the accident the vehicle was stopped, standing, or parked and whether attended or unattended, except that the requirements of this chapter apply in the event the director determines that any such stopping, standing, or parking of the vehicle was illegal or that the vehicle was not equipped as required by the laws of this state and that any such violation contributed to the accident.
  3. If prior to the date that the director would otherwise suspend a license or nonresident’s operating privilege under section 39-16-05, there must be filed with the director evidence satisfactory to the director that the person who would otherwise have to file security has been released from liability or been finally adjudicated not to be liable or has executed a confession of judgment, payable when and in such installments as the parties have agreed to, or has executed a duly acknowledged written agreement providing for the payment of an agreed amount in installments, with respect to all claims for injuries or damages resulting from the accident.

Source:

S.L. 1947, ch. 256, § 6; 1951, ch. 256, § 1; 1957, ch. 272, § 2; R.C. 1943, 1957 Supp., § 39-1606.

39-16-07. Release from suspension of license.

The license or nonresident’s operating privilege suspended as provided in section 39-16-05 must remain so suspended and may not be renewed nor may any such license be issued to such person until:

  1. Such person deposits or there is deposited on the person’s behalf the security required under section 39-16-05;
  2. One year has elapsed following the date of such accident and no evidence satisfactory to the director has been filed with the director that during such period an action for damages arising out of such accident has been instituted; or
  3. Evidence satisfactory to the director has been filed with the director of a release from liability, or a final adjudication of nonliability, or a confession of judgment, or a duly acknowledged written agreement, in accordance with subsection 3 of section 39-16-06; provided, in the event there is any default in the payment of any installment under any confession of judgment, then upon notice of such default, the director shall forthwith suspend the license or nonresident’s operating privilege of such persons defaulting which may not be restored unless and until the entire amount provided for in said confession of judgment has been paid; and provided further, that in the event there is any default on the payment of any installment under any duly acknowledged written agreement, then, upon notice of such default, the director shall forthwith suspend the license or nonresident’s operating privilege of such person defaulting which may not be restored unless and until such person deposits and thereafter maintains security as required under section 39-16-05 in such amount as the director may then determine, or one year has elapsed following the date when such security was required and during such period no action upon such agreement has been instituted in a court in this state.

Source:

S.L. 1947, ch. 256, § 7; R.C. 1943, 1957 Supp., § 39-1607; S.L. 1971, ch. 378, § 2; 1973, ch. 309, § 2.

39-16-08. Requirements of one not licensed.

In case the driver or the owner of a motor vehicle involved in an accident within this state has no license, the person may not be allowed a license until the person has complied with the requirements of this chapter to the same extent that would be necessary if, at the time of the accident, the person had held a license.

Source:

S.L. 1947, ch. 256, § 8; R.C. 1943, 1957 Supp., § 39-1608.

39-16-09. Director may fix, reduce, or increase requirement.

The security required under this chapter must be in such form and amount as the director may require but in no case in excess of the limits specified in section 39-16-05 in reference to the acceptable limits of a policy or bond. The person depositing security shall specify in writing the person in whose behalf the deposit is made, and at any time while such deposit is in the custody of the director or state treasurer, the person depositing it may in writing amend the specification of the person on whose behalf the deposit is made to include an additional person; provided, that a single deposit of security shall be applicable only on behalf of a person required to furnish security because of the same accident. The director may reduce or increase the amount of security ordered in any case if, in the director’s judgment, the amount ordered is excessive or inadequate. In case the security originally ordered has been deposited, the excess deposited over the reduced amount must be returned to the depositor or the depositor’s personal representative forthwith, notwithstanding the provisions of section 39-16-10.

Source:

S.L. 1947, ch. 256, § 9; R.C. 1943, 1957 Supp., § 39-1609.

39-16-10. Deposit of security with Bank of North Dakota — Release — How payment made.

  1. Security deposited in compliance with the requirements of this chapter must be placed by the director in the custody of the Bank of North Dakota and must be applied as in subsection 2 only to the payment of a judgment rendered against the person on whose behalf the deposit was made, for damages arising out of the accident in question in an action at law, begun not later than one year after the date of such accident, or within one year after the date of deposit of any security under subsection 3 of section 39-16-07, and such deposit or any balance thereof must be returned to the depositor or the depositor’s personal representative, when evidence satisfactory to the director has been filed with the director that there has been a release from liability, or a final adjudication of nonliability, or a confession of judgment, or a duly acknowledged agreement, in accordance with subsection 3 of section 39-16-06, or whenever, after the expiration of one year from the date of the accident, or within one year after the date of deposit of any security under subsection 3 of section 39-16-07, the director is given reasonable evidence that there is no such action pending and no judgment rendered in such action left unpaid. Upon certification by the director, the Bank of North Dakota shall return any security deposited with the director under the provisions of this chapter to the person entitled thereto except as provided for in subsection 3.
  2. Such deposit must be held by the Bank of North Dakota to satisfy, in accordance with the provisions of this chapter, any execution on a judgment issued against the person for whom such deposit was made, for damages, including damages for care and loss of services, because of bodily injury to or death of any person, or for damages because of injury to or destruction of property, including the loss of use thereof, resulting from the ownership, maintenance, use, or operation of a motor vehicle in the accident which resulted in the requirement for the deposit of such security. Money or securities so deposited shall not be subject to attachment or execution unless such attachment or execution arises out of a suit for damages as aforesaid.
  3. All payments and refunds made from cash deposits in the Bank of North Dakota under this chapter must be made upon a warrant-check issued by the department of transportation after submission of a duly authorized voucher.

Source:

S.L. 1947, ch. 256, § 10; R.C. 1943, 1957 Supp., § 39-1610; S.L. 1965, ch. 181, § 18; 1989, ch. 113, § 8; 2009, ch. 326, § 4.

39-16-11. Record not admissible as evidence.

Neither the report required, the action taken by the director pursuant to this chapter, the findings, if any, of the director upon which action is based, nor the security filed, nor the insurance carried or furnished as provided in this chapter may be referred to in any way, nor be any evidence of the negligence or due care of either party, at the trial of any action at law to recover damages.

Source:

S.L. 1947, ch. 256, § 11; R.C. 1943, 1957 Supp., § 39-1611.

Notes to Decisions

Application of Section.

Application of this section and former N.D.C.C. § 49-18-33, which prohibit making insurer a defendant in a damage action against the insured and bringing of matter of insurance before jury, is limited to actions under these particular statutes and not to an action against taxicab driver and owner, liability insurer and automobile owners for injuries to taxicab passenger in an accident, where taxicab company had obtained insurance required by municipal ordinance. James v. Young, 77 N.D. 451, 43 N.W.2d 692, 1950 N.D. LEXIS 142 (N.D. 1950).

Law Reviews.

Counterclaims and Third-party Practice under the North Dakota Rules, 34 N.D. L. Rev. 7 (1958).

39-16-12. Notice of failure to satisfy judgment. [Repealed]

Repealed by S.L. 1967, ch. 313, § 3.

Note.

For present provisions, see § 39-16.1-03.

39-16-13. Suspension of license — Temporary release. [Repealed]

Repealed by S.L. 1967, ch. 313, § 3.

Note.

For present provisions, see § 39-16.1-04.

39-16-14. Satisfaction of judgment. [Repealed]

Repealed by S.L. 1967, ch. 313, § 3.

Note.

For present provisions, see § 39-16.1-05.

39-16-15. Installment payments. [Repealed]

Repealed by S.L. 1967, ch. 313, § 3.

Note.

For present provisions, see § 39-16.1-06.

39-16-16. Revocation of license for reasons other than provisions of this chapter. [Repealed]

Repealed by S.L. 1967, ch. 313, § 3.

Note.

For present provisions, see § 39-16.1-07.

39-16-17. Proof of financial responsibility. [Repealed]

Repealed by S.L. 1967, ch. 313, § 3.

Note.

For present provisions, see § 39-16.1-08.

39-16-18. Proof by showing insurance coverage. [Repealed]

Repealed by S.L. 1967, ch. 313, § 3.

Note.

For present provisions, see § 39-16.1-09.

39-16-19. Nonresident owner. [Repealed]

Repealed by S.L. 1967, ch. 313, § 3.

Note.

For present provisions, see § 39-16.1-10.

39-16-20. Motor vehicle liability policy. [Repealed]

Repealed by S.L. 1967, ch. 313, § 3.

Note.

For present provisions, see § 39-16.1-11.

39-16-21. Notice of proposed cancellation of policy by insurer. [Repealed]

Repealed by S.L. 1967, ch. 313, § 3.

Note.

For present provisions, see § 39-16.1-12.

39-16-22. Other laws requiring insurance. [Repealed]

Repealed by S.L. 1967, ch. 313, § 3.

Note.

For present provisions, see § 39-16.1-13.

39-16-23. Financial responsibility may be evidenced by bond. [Repealed]

Repealed by S.L. 1967, ch. 313, § 3.

Note.

For present provisions, see § 39-16.1-14.

39-16-24. Deposit of cash with state treasurer. [Repealed]

Repealed by S.L. 1967, ch. 313, § 3.

Note.

For present provisions, see § 39-16.1-15.

39-16-25. Employment or family connection in lieu of proof of financial responsibility. [Repealed]

Repealed by S.L. 1967, ch. 313, § 3.

Note.

For present provisions, see § 39-16.1-16.

39-16-26. Release of bond or deposit on making other proof of responsibility. [Repealed]

Repealed by S.L. 1967, ch. 313, § 3.

Note.

For present provisions, see § 39-16.1-17.

39-16-27. Procedure on failure of proof on file. [Repealed]

Repealed by S.L. 1967, ch. 313, § 3.

Note.

For present provisions, see § 39-16.1-18.

39-16-28. Cancellation of bond or return of deposit. [Repealed]

Repealed by S.L. 1967, ch. 313, § 3.

Note.

For present provisions, see § 39-16.1-19.

39-16-29. Seizure or return of operator’s license. [Repealed]

Repealed by S.L. 2009, ch. 328, § 8.

39-16-30. Operating while under suspension or revocation — Penalties. [Repealed]

Repealed by S.L. 2005, ch. 330, § 8.

39-16-31. Federal, state, or municipal ownership.

This chapter does not apply with respect to any motor vehicle owned and operated by the United States, this state, or any political subdivision of this state or any municipality therein.

Source:

S.L. 1947, ch. 256, § 31; R.C. 1943, 1957 Supp., § 39-1631.

39-16-32. Who may be self-insurer.

  1. Any person in whose name more than twenty-five motor vehicles are registered may qualify as a self-insurer by obtaining a certificate of self-insurance issued by the director as provided in subsection 2.
  2. The director may, upon the application of any person, issue a certificate of self-insurance when the director is satisfied that the person is possessed and will continue to be possessed of ability to pay any judgment obtained against the person.
  3. Upon not less than five days’ notice and a hearing pursuant to such notice, the director may cancel a certificate of self-insurance if the director is satisfied that the person is not possessed or will not continue to be possessed of ability to pay any judgment obtained against the person. Failure to pay any judgment within thirty days after such judgment has become final constitutes a reasonable ground for the cancellation of a certificate of self-insurance.

Source:

S.L. 1947, ch. 256, § 32; R.C. 1943, 1957 Supp., § 39-1632.

39-16-33. Effect on certain laws. [Repealed]

Repealed by omission from this code.

39-16-34. Not retroactive. [Repealed]

Repealed by omission from this code.

39-16-35. May rely on other process. [Repealed]

Repealed by omission from this code.

39-16-36. Citation. [Repealed]

Repealed by omission from this code.

39-16-37. Effective date. [Repealed]

Repealed by omission from this code.

CHAPTER 39-16.1 Proof of Financial Responsibility for the Future

39-16.1-01. Application.

The provisions of this chapter requiring the deposit of proof of financial responsibility for the future, subject to certain exemptions, apply with respect to any person who has been convicted of or forfeited bail for certain offenses under motor vehicle laws or who has failed to pay judgments upon claims for relief arising out of ownership, maintenance, or use of vehicles of a type subject to registration under the laws of this state.

Source:

S.L. 1967, ch. 313, § 2; 1985, ch. 82, § 101; 1985, ch. 429, § 9; 2001, ch. 340, § 8.

Notes to Decisions

Family Exclusion Clause Void.

Inclusion in motor vehicle policy of restrictive limitation on class of potential beneficiaries through “household, or family, exclusion clause” was void as violative of public policy and financial responsibility laws of North Dakota. Hughes v. State Farm Mut. Auto. Ins. Co., 236 N.W.2d 870, 1975 N.D. LEXIS 143 (N.D. 1975).

In order for a motor vehicle liability policy purchased to avoid the sanctions in N.D.C.C. § 39-16-05, it must provide the named insured, and any other person using the insured motor vehicle with permission of the named insured, with minimum coverage for damages arising out of the ownership, maintenance, or use of the insured motor vehicle. Therefore, a “household or family exclusion” clause violated the financial responsibility laws and public policy because that clause excluded coverage for a class of beneficiaries suffering damages arising out of the ownership, maintenance, or use of the insured motor vehicle. State Farm Mut. Auto. Ins. Co. v. LaRoque, 486 N.W.2d 235, 1992 N.D. LEXIS 147 (N.D. 1992).

Purpose.

The basic purpose of this chapter and N.D.C.C. ch. 39-16 was to protect innocent victims of motor vehicle accidents from financial disaster. State Farm Mut. Auto. Ins. Co. v. LaRoque, 486 N.W.2d 235, 1992 N.D. LEXIS 147 (N.D. 1992).

The license suspension sanctions imposed by N.D.C.C. ch. 39-16, were intended to guarantee financial responsibility for a first accident, in contrast to the requirements of this chapter which were designed to establish proof of financial responsibility for future accidents involving a motor vehicle owner or operator who has already had an accident, or who has been convicted of certain traffic offenses. State Farm Mut. Auto. Ins. Co. v. LaRoque, 486 N.W.2d 235, 1992 N.D. LEXIS 147 (N.D. 1992).

Although the basic purpose of North Dakota’s financial responsibility laws is to protect innocent victims of motor vehicle accidents from financial ruin, the statutory scheme accomplishes that objective by requiring the owner to purchase insurance coverage for the operation of a designated vehicle. State Farm Mut. Auto. Ins. Co. v. LaRoque, 486 N.W.2d 235, 1992 N.D. LEXIS 147 (N.D. 1992).

Collateral References.

Joinder of insurer and insured under policy of compulsory indemnity or liability insurance in action by third person, 20 A.L.R.2d 1097.

Presumption and prima facie case as to ownership of vehicle causing highway accident, 27 A.L.R.2d 167.

Liability of insurer under compulsory statutory vehicle liability policy, to injured third persons, notwithstanding insured’s failure to comply with policy conditions, as measured by policy limits or by limits of Financial Responsibility Act, 29 A.L.R.2d 817.

Construction and effect of exclusionary clause in automobile liability policy making policy inapplicable where vehicle is used as “public or livery conveyance”, 30 A.L.R.2d 273.

Trailers as affecting automobile insurance, , 65 A.L.R.3d 804.

Failure to give notice, or other lack of cooperation by insured, as defense to action against compulsory liability insurer by injured member of public, 31 A.L.R.2d 645.

Effect of provision of liability policy covering hired automobiles but excluding from definition of “insured” the owner of such vehicle or his employee, 32 A.L.R.2d 572.

Validity of Motor Vehicle Financial Responsibility Act, 35 A.L.R.2d 1011.

Operator’s liability policy issued in compliance with financial responsibility statute, 88 A.L.R.2d 995.

Insured’s first accident, policy provision extending coverage to comply with Financial Responsibility Act as applicable to, 8 A.L.R.3d 388.

Temporary automobile insurance pending issuance of policy, 12 A.L.R.3d 1304.

Construction and application of “automatic insurance” or “newly acquired vehicle” clause (“replacement,” and “blanket,” or “fleet” provisions) contained in automobile liability policy, 39 A.L.R.4th 229.

Construction and application of substitution provision of automobile liability policy, 42 A.L.R.4th 1145.

Cancellation of compulsory or “financial responsibility” automobile insurance, 44 A.L.R.4th 13.

Validity, construction, application, and effect of statute requiring conditions, in addition to expiration of time, for reinstatement of suspended or revoked driver’s license, 2 A.L.R.5th 725.

39-16.1-02. Proof of financial responsibility defined. [Repealed]

Repealed by S.L. 2013, ch. 291, § 62.

39-16.1-03. Notice of failure to satisfy judgment.

When any person fails within thirty days to satisfy any judgment, it is the duty of the clerk of the court, or of the judge of a court which has no clerk, in which any such judgment is rendered within this state, to forward to the director immediately after the expiration of said thirty days, a certified copy of such judgment or a certified copy of the docket entries in an action resulting in a judgment for damages or a certificate of facts relative to a judgment on a form provided by the director. If the judgment debtor is a nonresident, the director shall transmit a certified copy of the judgment to the official in charge of the issuance of drivers’ licenses of the state of which the judgment debtor is a resident.

Source:

S.L. 1967, ch. 313, § 2; 1969, ch. 350, § 1.

39-16.1-04. Suspension of license — Temporary release.

  1. The director, upon receipt of a certified copy of a judgment or a certified copy of the docket entries in an action resulting in a judgment for damages or a certificate of facts relative to a judgment on a form provided by the director, shall forthwith suspend the license or operating privilege, of any person against whom such judgment was rendered except as hereinafter otherwise provided in this section and in section 39-16.1-06.
  2. If the judgment creditor consents in writing, in such form as the director may prescribe that the judgment debtor be allowed license or nonresident’s operating privilege, the same may be allowed by the director for six months from the date of such consent and thereafter until such consent is revoked in writing, notwithstanding default in the payment of such judgment, or of any installments thereof prescribed in section 39-16.1-06 provided the judgment debtor furnishes proof of financial responsibility.
  3. Any person whose license or nonresident’s operating privilege has been suspended or is about to be suspended or will become subject to suspension under this chapter may be relieved from the effect of the judgment as prescribed in this chapter by filing with the director an affidavit stating that at the time of the accident upon which the judgment has been rendered the affiant was insured, that the insurer is liable to pay the judgment, and the reason, if known, why the insurer has not paid the judgment. That person shall also file the original or a copy of the insurance policy, if available, and any other documents the director may require to show that the loss, injury, or damage for which the judgment was rendered, was covered by the insurance policy. If the director is satisfied from such papers that the insurer was authorized to issue the insurance policy at the time and place of issuing the policy and that the insurer is liable to pay the judgment, at least to the extent and for the amounts required in this chapter, the director may not suspend the license or nonresident’s operating privilege, or if already suspended shall reinstate them.
  4. A license or nonresident’s operating privilege must remain suspended and may not be renewed, nor may any such license be thereafter issued in the name of such person, including any such person not previously licensed, unless and until every such judgment is satisfied in full or to the extent hereinafter provided and until the said person gives proof of financial responsibility subject to the exemptions stated in sections 39-16.1-04 and 39-16.1-06.

Source:

S.L. 1967, ch. 313, § 2; 1969, ch. 350, § 2; 1985, ch. 317, § 72; 1989, ch. 474, § 1.

Notes to Decisions

Driving Under Suspension.

A person whose driving privileges were suspended because of failure to provide proof of financial responsibility under N.D.C.C. ch. 39-16.1 may be convicted for driving under suspension in violation of N.D.C.C. § 39-06-42. State v. Grenz, 437 N.W.2d 851, 1989 N.D. LEXIS 63 (N.D. 1989).

39-16.1-05. Satisfaction of judgment.

Judgments herein referred to must, for the purpose of this chapter only, be deemed satisfied:

  1. When twenty-five thousand dollars has been credited upon any judgment or judgments rendered in excess of that amount because of bodily injury to or death of one person as the result of any one accident;
  2. When, subject to such limit of twenty-five thousand dollars because of bodily injury to or death of one person, the sum of fifty thousand dollars has been credited upon any judgment or judgments rendered in excess of that amount because of bodily injury to or death of two or more persons as the result of any one accident; or
  3. When twenty-five thousand dollars has been credited upon any judgment or judgments rendered in excess of that amount because of damage to or destruction of property of others as a result of any one accident. Payments made in settlement of any claims because of bodily injury, death, or property damages arising from a motor vehicle accident must be credited in reduction of the amounts provided for in this section.

Source:

S.L. 1967, ch. 313, § 2; 1979, ch. 404, § 4; 1985, ch. 442, § 3.

39-16.1-06. Installment payments.

  1. A judgment debtor upon due notice to the judgment creditor may apply to the court in which such judgment was rendered for the privilege of paying such judgment in installments and the court, in its discretion and without prejudice to any other legal remedies which the judgment creditor may have, may so order and fix the amounts and times of payment of the installments.
  2. The director may not suspend a license, or a nonresident’s operating privilege, suspended following nonpayment of a judgment, when the judgment debtor gives proof of financial responsibility and obtains such an order permitting the payment of such judgment in installments, and while the payment of any said installment is not in default.
  3. In the event the judgment debtor fails to pay any installment as specified by such order, then upon notice of such default, the director shall forthwith suspend the license, or nonresident’s operating privilege of the judgment debtor until such judgment is satisfied as provided in this chapter.

Source:

S.L. 1967, ch. 313, § 2.

39-16.1-07. Revocation or suspension of license for reasons other than provisions of this chapter.

  1. Whenever the director under any other law of this state, except sections 39-06-40 and 39-06-40.1, revokes the license of any person, the license must remain revoked and may not be renewed nor shall any license be issued to such person, unless the person gives and maintains proof of financial responsibility.
  2. If a person by final order or judgment is convicted of or forfeits any bail or collateral deposited to secure an appearance for trial for any offense requiring the revocation of license, driving or being in actual physical control of a vehicle while under the influence in violation of section 39-08-01 or equivalent ordinance, or operating a motor vehicle upon the highway while the person’s license or privilege to drive is under suspension for a violation requiring a license or privilege to drive suspension of at least ninety-one days or revocation, the license or driving privilege must be suspended or revoked and no license may be issued or returned to the person, unless the person gives and maintains proof of financial responsibility.

Source:

S.L. 1967, ch. 313, § 2; 1969, ch. 350, § 3; 1973, ch. 301, § 29; 1975, ch. 354, § 1; 1981, ch. 91, § 28; 1985, ch. 429, § 10; 1993, ch. 393, § 1; 1995, ch. 372, § 9; 2011, ch. 271, § 17.

Notes to Decisions

Definitions.

Proof of financial responsibility means proof to respond to damages for liability on account of accidents occurring subsequent to the effective date of said proof. State v. Harm, 200 N.W.2d 387, 1972 N.D. LEXIS 128 (N.D. 1972).

Due Process.

This section is not developed around liability-related concepts, and is therefore not a violation of due process. State v. Harm, 200 N.W.2d 387, 1972 N.D. LEXIS 128 (N.D. 1972).

Refusal to Reduce Points.

Where it was undisputed that defendant had not paid the reinstatement fee, had not furnished an addiction treatment statement, and had not submitted proof of financial responsibility, the driver’s license division did not err in failing to reduce the number of points against defendant’s license to eleven after his license had been suspended for ninety-one days pursuant to N.D.C.C. § 39-06.1-12 or 39-06.1-13(1). State v. Bettenhausen, 460 N.W.2d 394, 1990 N.D. LEXIS 179 (N.D. 1990).

39-16.1-08. Proof of financial responsibility.

Proof of financial responsibility when required under this chapter may be given by filing:

  1. A certificate of insurance as provided in sections 39-16.1-09 and 39-16.1-10;
  2. A bond as provided in section 39-16.1-14; or
  3. A certificate of deposit of money or securities as provided in section 39-16.1-15.

Source:

S.L. 1967, ch. 313, § 2.

39-16.1-09. Proof by showing insurance coverage.

  1. Proof of financial responsibility may be furnished by filing with the director the written or electronically transmitted certificate of any insurance carrier duly authorized to do business in this state certifying that there is in effect a motor vehicle liability policy for the benefit of the person required to furnish proof of financial responsibility. Such certificate must give the effective date of such motor vehicle liability policy, which date shall be the same as the effective date of the certificate, and must designate by explicit description or by appropriate reference all motor vehicles covered thereby, unless the policy is an operator’s policy.
  2. When a certificate is filed showing that a policy or policies have been issued covering certain described motor vehicles or a limited operator’s policy but not insuring such person when operating all other motor vehicles, the director shall designate suitable restriction upon the driver’s license of such person authorizing the operation of only such vehicles as are covered by the certificate. It is unlawful for such person to operate any motor vehicle not covered by such certificate. In the event a person desires to be relieved of the foregoing restriction and to be permitted to operate any motor vehicle, the person may have such restriction removed upon filing a certificate showing that there has been issued to the person a motor vehicle liability policy insuring the person against liability arising out of the use of any motor vehicle.

Source:

S.L. 1967, ch. 313, § 2; 1987, ch. 479, § 2.

Notes to Decisions

Legislative Intent.

This section and N.D.C.C. § 39-16.1-10 demonstrate a legislative intent that an insurance company may insure fewer than all vehicles driven by an insured. State Farm Mut. Auto. Ins. Co. v. LaRoque, 486 N.W.2d 235, 1992 N.D. LEXIS 147 (N.D. 1992).

39-16.1-10. Nonresident owner.

  1. The nonresident owner of a motor vehicle not registered in this state may give proof of financial responsibility by filing with the director a written or electronically transmitted certificate of an insurance carrier authorized to transact business in the state in which the motor vehicle or motor vehicles described in the certificate is registered, or if the nonresident does not own a motor vehicle, then in the state in which the insured resides, provided the certificate otherwise conforms to the provisions of this chapter, and the director shall accept the same upon condition that the insurance carrier complies with the following provisions with respect to the policies so certified:
    1. The insurance carrier shall execute a power of attorney authorizing the director to accept service on its behalf of notice or process in any action arising out of a motor vehicle accident in this state.
    2. The insurance carrier shall agree in writing that the policies conform with the laws of this state relating to the terms of motor vehicle liability policies issued herein.
  2. If any insurance carrier not authorized to transact business in this state, which has qualified to furnish proof of financial responsibility, defaults in any undertaking or agreement, the director may not thereafter accept as proof any certificate of the carrier whether filed up to that time or thereafter tendered as proof, so long as the default continues.
  3. Notwithstanding the requirement of subsection 1, the nonresident owner of a motor vehicle not registered in this state may file proof of future financial responsibility of an insurance company or other state-authorized entity providing insurance and authorized or licensed to do business in the nonresident’s state of residence as long as such proof of future financial responsibility is in the amounts required by this state.

Source:

S.L. 1967, ch. 313, § 2; 1987, ch. 479, § 3; 2003, ch. 312, § 8.

Notes to Decisions

Applicability.

Where a South Dakota insured with a South Dakota automobile liability policy was injured by his wife’s negligent driving in North Dakota, a broad grant of coverage in the policy’s out-of-state coverage clause replaced the policy’s coverage containing a household exclusion clause and gave coverage under North Dakota law which banned such exclusions; N.D.C.C. §§ 39-08-20, 39-16.1-10, 39-16.1-11 required a nonresident to provide insurance that conformed to the provisions of N.D.C.C. ch. 39-16.1 Schleuter v. N. Plains Ins. Co., 2009 ND 171, 772 N.W.2d 879, 2009 N.D. LEXIS 182 (N.D. 2009).

Legislative Intent.

This section and N.D.C.C. § 39-16.1-09 demonstrate a legislative intent that an insurance company may insure fewer than all vehicles driven by an insured. State Farm Mut. Auto. Ins. Co. v. LaRoque, 486 N.W.2d 235, 1992 N.D. LEXIS 147 (N.D. 1992).

39-16.1-11. Motor vehicle liability policy.

  1. A “motor vehicle liability policy” as said term is used in this chapter means an owner’s or an operator’s policy of liability insurance, certified as provided in sections 39-16.1-09 and 39-16.1-10 as proof of financial responsibility, and issued, except as otherwise provided in section 39-16.1-10, by an insurance carrier duly authorized to transact business in this state, to or for the benefit of the person named therein as insured.
  2. Such owner’s policy of liability insurance:
    1. Must designate by explicit description or by appropriate reference all motor vehicles with respect to which coverage is thereby to be granted; and
    2. Must insure the person named therein and any other person, as insured, using such motor vehicle or motor vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such motor vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs, with respect to each such motor vehicle, as follows: twenty-five thousand dollars because of bodily injury to or death of one person in any one accident and subject to said limit for one person, fifty thousand dollars because of bodily injury to or death of two or more persons in any one accident, and twenty-five thousand dollars because of injury to or destruction of property of others in any one accident.
  3. Such operator’s policy of liability insurance must insure the person named as insured therein against loss from the liability imposed upon the person by law for damages arising out of the use by the person of any motor vehicle, either unlimited, or limited by excluding certain classes or types of motor vehicles, within the same territorial limits and subject to the same limits of liability as are set forth above with respect to an owner’s policy of liability insurance.
  4. Such motor vehicle liability policy must state the name and address of the named insured, the coverage afforded by the policy, the premium charged therefor, the policy period and the limits of liability, and must contain an agreement or be endorsed that insurance is provided thereunder in accordance with the coverage defined in this chapter as respects bodily injury and death or property damage, or both, and is subject to all the provisions of this chapter.
  5. Such motor vehicle liability policy need not insure any liability under any workforce safety and insurance law nor any liability on account of bodily injury to or death of an employee of the insured while engaged in the employment, other than domestic, of the insured, or while engaged in the operation, maintenance, or repair of any such motor vehicle nor any liability for damage to property owned by, rented to, in charge of, or transported by the insured.
  6. Every motor vehicle liability policy is subject to the following provisions, which need not be contained in the policy:
    1. The liability of the insurance carrier with respect to the insurance required by this chapter becomes absolute if injury or damage covered by the motor vehicle liability policy occurs; the policy may not be canceled or annulled as to the liability by any agreement between the insurance carrier and the insured after the occurrence of the injury or damage; and a statement made by the insured or on the insured’s behalf and a violation of the policy do not defeat or void the policy. This subdivision does not restrict the ability of an insurance carrier to void a motor vehicle liability policy for which an application was made after injury or damage occurred and does not obligate the insurance carrier to pay a claim on account of injury or damage that occurred before the application was made.
    2. The satisfaction by the insured of a judgment for injury or damage is not a condition precedent to the right or duty of the insurance carrier to make payment on account of the injury or damage.
    3. The insurance carrier has the right to settle any claim covered by the policy, and if the settlement is made in good faith, the amount of that settlement is deductible from the limits of liability specified in subdivision b of subsection 2 for the accident out of which the claim arose.
    4. The policy, the written application of the policy, if any, and any rider or endorsement that does not conflict with the provisions of this chapter constitute the entire contract between the parties.
  7. Any policy which grants the coverage required for a motor vehicle liability policy may also grant any lawful coverage in excess of or in addition to the coverage specified for a motor vehicle liability policy and such excess or additional coverage is not subject to the provisions of this chapter. With respect to a policy which grants such excess or additional coverage, the term “motor vehicle policy” applies only to that part of the coverage which is required by this section.
  8. Any motor vehicle liability policy may provide that the insured shall reimburse the insurance carrier for any payment the insurance carrier would not have been obligated to make under the terms of the policy except for the provisions of this chapter.
  9. Any motor vehicle liability policy may provide for the prorating of the insurance thereunder with other valid and collectible insurance.
  10. The requirements for a motor vehicle liability policy may be fulfilled by the policies of one or more insurance carriers which policies together meet such requirements.
  11. Any binder issued pending the issuance of a motor vehicle liability policy must be deemed to fulfill the requirements for such policy.

Source:

S.L. 1967, ch. 313, § 2; 1979, ch. 404, § 5; 1979, ch. 425, § 2; 1985, ch. 442, § 4; 1989, ch. 69, § 46; 2003, ch. 561, § 3; 2019, ch. 331, § 1, effective August 1, 2019.

Notes to Decisions

Applicability.

Subdivision (6)(a) of this section, which provides that the insurer’s liability shall become absolute when injury or damage occurs, that the policy may not be cancelled or annulled as to such liability, and that no statement of the insured or violation of the policy shall defeat same, is applicable to motor vehicle liability policies purchased to avoid the sanctions of N.D.C.C. § 39-16-05. Richard v. Fliflet, 370 N.W.2d 528, 1985 N.D. LEXIS 342 (N.D. 1985).

Subsection (6) of this section, which prohibits cancellation of a motor vehicle liability policy after an accident, is incorporated into policies purchased to avoid the sanctions in N.D.C.C. § 39-06-05. The basic purpose of the financial responsibility laws would be defeated if a policy purchased to avoid those sanctions could be cancelled after an accident. State Farm Mut. Auto. Ins. Co. v. LaRoque, 486 N.W.2d 235, 1992 N.D. LEXIS 147 (N.D. 1992).

Where a South Dakota insured with a South Dakota automobile liability policy was injured by his wife’s negligent driving in North Dakota, a broad grant of coverage in the policy’s out-of-state coverage clause replaced the policy’s coverage containing a household exclusion clause and gave coverage under North Dakota law which banned such exclusions; N.D.C.C. §§ 39-08-20, 39-16.1-10, 39-16.1-11 required a nonresident to provide insurance that conformed to the provisions of N.D.C.C. ch. 39-16.1 Schleuter v. N. Plains Ins. Co., 2009 ND 171, 772 N.W.2d 879, 2009 N.D. LEXIS 182 (N.D. 2009).

District court did not err in granting an insurer's motion for summary judgment and denying summary judgment to the insured, the driver, and the injured motorcyclist because, while the insured was liable for the driver's negligent acts, the policy was an owner's policy, the driver's car was not designated on the policy, and the driver's car was not a newly acquired car. State Farm Mut. Auto. Ins. Co. v. Gruebele, 2014 ND 105, 846 N.W.2d 745, 2014 N.D. LEXIS 108 (N.D. 2014).

Exceptions from Coverage.

Where an insured’s wife drove the insured’s vehicle without his permission and collided with a semi-trailer and where the wife told an investigating officer that she intentionally collided with the semi-trailer in a suicide attempt, the insurance company was entitled to summary judgment in its declaratory action seeking a determination that it was not required to afford coverage for the incident and the trial court erred in denying the insurance company’s summary judgment motion because coverage was afforded for the named insured and permissive drivers and the wife was neither. Further, the policy expressly excluded coverage for intentionally caused bodily injury or property damage; because the wife admitted that the collision was intentional and not accidental, no coverage was afforded under the policy terms. Grinnell Mut. Reinsurance Co. v. Thompson, 2010 ND 22, 778 N.W.2d 526, 2010 N.D. LEXIS 29 (N.D. 2010).

Liability Exclusion Provisions Not in Conflict with This Section.

The provisions of two insurance policies excluding liability coverage when a vehicle was used without permission did not conflict with this section where the accident did not involve the vehicle designated under the one policy and the coverage provided under the other policy was actually broader than that required by this section. Grinnell Mut. Reinsurance Co. v. Farm & City Ins. Co., 2000 ND 163, 616 N.W.2d 353, 2000 N.D. LEXIS 174 (N.D. 2000).

Minimum Coverage Outlined in This Section Required.

Terms of motor vehicle liability policy issued and delivered in North Dakota must provide at least minimum coverage outlined in this section. Hughes v. State Farm Mut. Auto. Ins. Co., 236 N.W.2d 870, 1975 N.D. LEXIS 143 (N.D. 1975).

All motor vehicle liability policies used to satisfy the sanctions of N.D.C.C. § 39-16-05 must contain the minimum limits and the same omnibus coverage required by this section. Otherwise the coverage would not be “substantially the same” as coverage required by N.D.C.C. ch. 39-16.1, as that phrase is used in N.D.C.C. § 39-16-05. Richard v. Fliflet, 370 N.W.2d 528, 1985 N.D. LEXIS 342 (N.D. 1985).

By requiring a designation of all covered vehicles, subsection (2) of this section contemplates the circumstance that there will be vehicles not designated and therefore not covered. An “operator’s policy” requires insurance for the named insured for damages arising out of the use of any motor vehicle, either unlimited, or limited by excluding certain classes or types of motor vehicles and may furnish limited coverage by excluding certain classes or types of vehicles. State Farm Mut. Auto. Ins. Co. v. LaRoque, 486 N.W.2d 235, 1992 N.D. LEXIS 147 (N.D. 1992).

Where the insured’s son was injured while driving his father’s truck, he filed suit against the insurance company seeking a payment of benefits under the underinsured motorist (UIM) provisions of a commercial auto insurance policy; the insurance company claimed that there was no coverage based on the insured’s alleged material misrepresentations made to obtain the insurance policy, fraud, concealment, and collusion. The district court erred by granting summary judgment for the insurance company; there was a genuine issue of material fact as to whether N.D.C.C. § 39-16.1-11(6)(a) prohibited cancellation of the policy, because the son was an injured innocent third party and UIM coverage was required by state law. Kambeitz v. Acuity Ins. Co., 2009 ND 166, 772 N.W.2d 632, 2009 N.D. LEXIS 177 (N.D. 2009).

Misrepresentation.

Insurer could not rescind insurance policy issued to insured who voluntarily purchased it to avoid the sanctions of N.D.C.C. § 39-16-05 after an accident on the basis of his material misrepresentation of ownership of the automobile. Richard v. Fliflet, 370 N.W.2d 528, 1985 N.D. LEXIS 342 (N.D. 1985).

Law Reviews.

Insurance Coverage of Punitive Damages, 53 N.D. L. Rev. 239 (1976).

Financial Responsibility Laws and Automobile Liability Insurance: Comment on Richard v. Fliflet, 370 N.W.2d 528 (1985), 62 N.D. L. Rev. 381 (1986).

Case Comment: Insurance — Automobile Insurance: The North Dakota Supreme Court Rules that a Head of Household’s Liability Under the Family Car Doctrine Is Not Necessarily Covered by His Automobile Insurance Policy (McPhee v. Tufty, 2001 ND 51, 623 N.W.2d 390 (2001)), 78 N.D. L. Rev. 479 (2002).

39-16.1-12. Notice of cancellation of policy by insurer.

When an insurance carrier has certified a motor vehicle liability policy under sections 39-16.1-09 and 39-16.1-10, the insurance carrier shall notify the director no later than ten days after cancellation or termination of the certified insurance policy by filing a notice of cancellation or termination of the certified insurance policy; except that a policy subsequently procured and certified shall, on the effective date of its certification, terminate the insurance previously certified with respect to any motor vehicle designated in both certificates.

Source:

S.L. 1967, ch. 313, § 2; 1987, ch. 479, § 4.

Collateral References.

Cancellation of compulsory or “financial responsibility” automobile insurance, 44 A.L.R.4th 13.

39-16.1-13. Other laws requiring insurance.

  1. This chapter does not apply to or affect policies of automobile insurance against liability which may now or hereafter be required by any other law of this state, and such policies, if they contain an agreement or are endorsed to conform to the requirements of this chapter, may be certified as proof of financial responsibility under this chapter.
  2. This chapter may not be held to apply to or affect policies insuring solely the insured named in the policy against liability resulting from the maintenance or use by persons in the insured’s employ or on the insured’s behalf of motor vehicles not owned by the insured.

Source:

S.L. 1967, ch. 313, § 2.

39-16.1-14. Financial responsibility may be evidenced by bond.

  1. Proof of financial responsibility may be evidenced by the bond of a surety company duly authorized to transact business within this state, or a bond with at least two individual sureties each owning real estate not exempt from execution of a value twice the amount of such bond, which real estate must be scheduled in the bond approved by a judge of a court of record, and recorded in the office of the recorder of each county in which such real estate is situated, which said bond must be conditioned for payment of the amounts specified in section 39-16.1-02. Such bond must be filed with the director and is not cancelable except after ten days’ written notice to the director. Such bond constitutes a lien in favor of the state upon the real estate so scheduled of any surety, which lien exists for the benefit of any holder of a final judgment against the person who has filed such bond, for damages, including damages for care and loss of services, because of bodily injury to or death of any person, or for damages because of injury to or destruction of property, including the loss of use thereof, resulting from the ownership, maintenance, use, or operation of a motor vehicle after such bond is recorded.
  2. If such judgment rendered against the principal on such bond is not satisfied within sixty days after it has become final, the judgment creditor may, for the judgment creditor’s own use and benefit and at the judgment creditor’s sole expense, bring an action or actions in the judgment creditor’s own name against the company or persons executing such bond, including an action or proceeding to foreclose any lien that may exist upon the real estate of a person who has executed such bond.

Source:

S.L. 1967, ch. 313, § 2; 2001, ch. 120, § 1.

39-16.1-15. Deposit of cash with the Bank of North Dakota.

  1. Proof of financial responsibility may be evidenced by the certificate of the Bank of North Dakota that the person named therein has deposited with it twenty-five thousand dollars in cash, or securities such as may legally be purchased by savings banks or for trust funds of a market value of twenty-five thousand dollars. The Bank of North Dakota may not accept any such deposit and issue a certificate therefor and the director may not accept such certificate unless accompanied by evidence that there are no unsatisfied judgments of any character against the depositor in the county where the depositor resides.
  2. Such deposit must be held by the Bank of North Dakota to satisfy, in accordance with the provisions of this chapter, any execution on a judgment issued against such person making the deposit for damages, including damages for care and loss of services, because of bodily injury to or death of any person, or for damages because of damages to or destruction of property, including the loss of use thereof, resulting from the ownership, maintenance, use, or operation of a motor vehicle after such deposit was made. Money or securities so deposited are not subject to attachment or execution unless such attachment or execution arises out of a suit for damages as aforesaid.

Source:

S.L. 1967, ch. 313, § 2; 1989, ch. 113, § 9.

39-16.1-16. Employment or family connection in lieu of proof of financial responsibility.

Whenever any person required to give proof of financial responsibility hereunder is or later becomes an operator in the employ of any owner, or is or later becomes a member of the immediate family or household of the owner, the director shall accept proof given by such owner in lieu of proof by such other person to permit such other person to operate a motor vehicle for which the owner has given proof as herein provided. The director shall designate the restrictions imposed by this section on the face of such person’s license.

Source:

S.L. 1967, ch. 313, § 2.

39-16.1-17. Release of bond or deposit on making other proof of responsibility.

  1. The director shall consent to the cancellation of any bond or certificate of insurance or the director shall direct and the Bank of North Dakota shall return any money or securities to the person entitled thereto upon the substitution and acceptance of other adequate proof of financial responsibility pursuant to this chapter.
  2. The director may not consent to the cancellation of any bond or the return of any money or securities in the event any action for damages upon liability covered by such proof is then pending or any judgment upon any such liability is then unsatisfied, or in the event the person who has filed such bond or deposited such money or securities has, within one year immediately preceding such request been involved as an operator or owner in any motor vehicle accident resulting in injury or damage to the person or property of others. An affidavit of the applicant as to the nonexistence of such facts, or that the applicant has been released from all of the applicant’s liability, or has been finally adjudicated not to be liable, for such injury or damage, is sufficient evidence thereof in the absence of evidence to the contrary in the records of the director.

Source:

S.L. 1967, ch. 313, § 2; 1989, ch. 113, § 10.

39-16.1-18. Procedure on failure of proof on file.

Whenever any proof of financial responsibility filed under the provisions of this chapter no longer fulfills the purposes for which required, the director shall, for the purpose of this chapter, require other proof as required by this chapter and shall suspend the license or the nonresident’s operating privilege upon failure to file such other proof as required.

Source:

S.L. 1967, ch. 313, § 2.

39-16.1-19. Cancellation of bond or return of deposit.

  1. The director shall upon request consent to the immediate cancellation of any bond or certificate of insurance, or the director shall direct and the Bank of North Dakota shall return to the person entitled thereto any money or securities deposited pursuant to this chapter as proof of financial responsibility, or the director shall waive the requirement of filing proof, in any of the following events:
    1. At any time after one year from the date such proof was required when, during the one-year period preceding the request, the director has not received record of a conviction or a forfeiture of bail which would require the revocation of the license or operating privilege, or both, of the person by or for whom such proof was furnished.
    2. The death of the person on whose behalf such proof was filed or the permanent incapacity of such person to operate a motor vehicle.
    3. The surrender of the person’s license to the director by the person who has given proof.
  2. The director may not consent to the cancellation of any bond or the return of any money or securities in the event any action for damages upon a liability covered by such proof is then pending or any judgment upon any such liability is then unsatisfied, or in the event the person who has filed such bond or deposited such money or securities has, within one year immediately preceding such request, been involved as an operator or owner in any motor vehicle accident resulting in injury or damage to the person or property of others. An affidavit of the applicant as to the nonexistence of such facts, or that the applicant has been released from all of the applicant’s liability, or has been finally adjudicated not to be liable, for such injury or damage, is sufficient evidence thereof in the absence of evidence to the contrary in the records of the director.
  3. Whenever any person whose proof has been canceled or returned under subdivision c of subsection 1 applies for a license within a period of one year from the date proof was originally required, the application must be refused. The person’s operator’s license and driving privileges remain under suspension or revocation until the applicant re-establishes proof for the remainder of the one-year period.

Source:

S.L. 1967, ch. 313, § 2; 1969, ch. 350, § 4; 1989, ch. 113, § 11; 1993, ch. 390, § 2; 1995, ch. 372, § 10.

39-16.1-20. Seizure or return of operator’s license. [Repealed]

Repealed by S.L. 2007, ch. 325, § 7.

39-16.1-20.1. Verification of liability insurance.

No operator’s license may be returned to an individual unless that person files with the director a verified statement confirming the person’s insurance coverages as required by section 39-08-20. The verified statement must include the name of the insurance carrier and the effective dates of the policy. Upon the request of the director, the insurance carrier will verify the information contained in the verified statement. The director shall suspend the operator’s license of any person upon receiving satisfactory evidence that the verified statement contains false or fraudulent information. The period of suspension may not exceed six months. Any suspension must be initiated under section 39-06-33. An operator whose license is suspended under this section is not eligible for a temporary operator’s permit.

Source:

S.L. 1989, ch. 462, § 2.

39-16.1-21. Operating under suspension or revocation — Penalties. [Repealed]

Repealed by S.L. 2005, ch. 330, § 8.

39-16.1-22. Federal, state, or municipal ownership.

This chapter does not apply with respect to any motor vehicle owned and operated by the United States, this state, or any political subdivision of this state or any municipality therein.

Source:

S.L. 1967, ch. 313, § 2.

39-16.1-23. Who may be self-insurer.

  1. Any person in whose name more than twenty-five motor vehicles are registered may qualify as a self-insurer by obtaining a certificate of self-insurance issued by the director as provided in subsection 2.
  2. The director may, upon the application of any person, issue a certificate of self-insurance when the director is satisfied that such person is possessed and will continue to be possessed of ability to pay any judgment obtained against the person.
  3. Upon not less than five days’ notice and a hearing pursuant to such notice, the director may cancel a certificate of self-insurance if the director is satisfied that such person is not possessed or will not continue to be possessed of ability to pay any judgment obtained against the person. Failure to pay any judgment within thirty days after such judgment has become final constitutes a reasonable ground for the cancellation of a certificate of self-insurance.

Source:

S.L. 1967, ch. 313, § 2.

CHAPTER 39-16.2 Gas Transporter Financial Responsibility

39-16.2-01. Definitions.

As used in this chapter:

  1. “Dealer” means any person in the business of handling liquefied petroleum gas who delivers or sells any liquefied petroleum gas to any retail dealer or user of liquefied petroleum gas.
  2. “Liquefied petroleum gas” includes any material that is composed predominantly of any of the following hydrocarbons or mixtures of the following hydrocarbons: propane, propylene, butanes (normal butane and isobutane), and butylenes.

Source:

S.L. 1989, ch. 475, § 1.

39-16.2-02. Liquefied petroleum gas transporters — Financial responsibility requirements.

A dealer who owns or operates a vehicle used for the transportation of liquefied petroleum gas shall maintain motor vehicle liability insurance of:

  1. At least five million dollars for the transportation of liquefied petroleum gas transported in cargo tanks, portable tanks, or hopper-type vehicles with capacities of three thousand five hundred water gallons [13248.94 liters] or more.
  2. At least one million dollars for the transportation of liquefied petroleum gas transported in cargo tanks, portable tanks, or hopper-type vehicles with capacities of less than three thousand five hundred water gallons [13248.94 liters].

Source:

S.L. 1989, ch. 475, § 1.

39-16.2-03. Maintenance and certification of financial requirements — Verification.

A dealer subject to the financial responsibility requirements of this chapter shall maintain the liability insurance prescribed in section 39-16.2-02 which obligates the dealer to pay compensation for injuries to persons and for loss or damage to property by reason of the ownership, maintenance, or use of the covered vehicle. The director may require dealers subject to the financial responsibility requirements of this chapter to certify the existence of financial responsibility in the form and at the times required by the director. The director may forward the certification to the named insurer to determine if the certification is correct. No civil liability may accrue to the insurer or any of its employees for reports made to the director if the reports are made in good faith based upon the most recent information to the insurer.

Source:

S.L. 1989, ch. 475, § 1.

39-16.2-04. Self-insurance.

The director may allow a dealer to fully or partially self-insure motor vehicles as required by this chapter if the dealer provides financial data the director requires and the director determines that the financial data demonstrates that the dealer is sufficiently stable and solvent to fully or partially self-insure. The director shall authorize self-insurance subject to reasonable provisions for the filing of periodic financial statements demonstrating no substantial deterioration of financial stability.

Source:

S.L. 1989, ch. 475, § 1.

39-16.2-05. Penalties.

A dealer subject to the financial responsibility requirements of this chapter who operates or causes to be operated a motor vehicle in this state without meeting the financial responsibility requirements of this chapter is guilty of a class B misdemeanor. A dealer subject to the financial responsibility requirements of this chapter who operates or causes to be operated a motor vehicle in this state without meeting the financial responsibility requirements of this chapter if the vehicle is involved in an accident is guilty of a class A misdemeanor. The department may refuse to issue the registration for a vehicle or may cancel the registration of a vehicle owned or operated by a person who does not comply with the requirements of this chapter.

Source:

S.L. 1989, ch. 475, § 1.

CHAPTER 39-17 Unsatisfied Judgment Fund [Repealed]

[Repealed by S.L. 1983, ch. 332, § 26]

Note.

For present provisions, see ch. 26.1-23.

CHAPTER 39-18 Mobile Home Dealer Regulation

39-18-01. Mobile home and manufactured home dealer’s license — Fees — Dealer’s plates — Penalty.

  1. A person may not engage in the business of buying, selling, or exchanging of mobile homes, manufactured homes, or travel trailers, or advertise or hold that person out to the public as being in the business of buying, selling, or exchanging of mobile homes, manufactured homes, or travel trailers without first being licensed.
  2. Application for a dealer’s license and renewal license must be made to the department on forms the department prescribes and furnishes, and the application must be accompanied by an annual fee of thirty-five dollars for which must be issued one dealer plate. A dealer’s license expires on December thirty-first of each year, and application for renewal of a dealer’s license must be made on or before the expiration of the current dealer’s license.
  3. A mobile home or manufactured home dealer’s license must be issued only to those who will maintain a permanent office and place of business, and an adequate service department, during the licensing year, and will abide by all the provisions of law pertaining to mobile home or manufactured home dealers.
  4. In addition, the dealer shall maintain that person’s business records in one central location.
  5. Upon the payment of the fee of ten dollars for each additional plate, the department shall register and issue dealer’s license plates for use on any mobile or manufactured homes owned by the licensed dealer, and the mobile and manufactured homes bearing the dealer’s license plates may be lawfully operated upon the public highways of the state of North Dakota by the dealer, and the dealer’s agents and servants, during the year of the registration. A dealer’s license plates expire on December thirty-first of each year.
  6. The term “mobile home” as used in this chapter includes and has the same meaning as “housetrailer”, and both terms have the meaning prescribed in section 39-01-01. The terms “travel trailer” and “manufactured home” as used in this chapter have the meaning as prescribed in section 39-01-01.
  7. Any mobile home or manufactured home dealer licensed under this chapter may sell house cars without being licensed under chapter 39-22. A mobile home or manufactured home dealer plate displayed on a house car must be displayed on the rear of the vehicle.
  8. Any dealer violating this chapter must be assessed a one hundred dollar fee by the department for a first violation and a two hundred dollar fee by the department for a second violation within two years of the first violation. The department shall suspend the license of a mobile home or manufactured home dealer licensed under this chapter if a third or subsequent violation of this chapter occurs within five years of the first violation.

Source:

S.L. 1955, ch. 250, § 1; R.C. 1943, 1957 Supp., § 39-1801; S.L. 1961, ch. 253, § 7; 1973, ch. 310, § 1; 1977, ch. 366, § 1; 1985, ch. 412, § 2; 1987, ch. 480, § 1; 1993, ch. 54, § 106; 1997, ch. 343, § 1; 1999, ch. 330, § 6; 2005, ch. 338, § 1; 2013, ch. 307, § 3.

39-18-02. Bond required.

Before the issuance of a mobile home or manufactured home dealer’s license, the applicant for the license shall furnish a continuous surety bond executed by the applicant as principal and executed by a surety company licensed and qualified to do business within this state. The bond must be in the amount of fifty thousand dollars, and be conditioned upon the faithful compliance by the applicant as a dealer, if the license is issued to the dealer, that the dealer will comply with all the laws of this state pertaining to the business, and regulating or being applicable to the business of the dealer as a dealer in mobile homes or manufactured homes, and indemnifying any person dealing or transacting business with the dealer in connection with any mobile home or manufactured home from any loss or damage occasioned by the failure of the dealer to comply with the provisions of the laws of this state. This includes the furnishing of a proper and valid certificate of title to the vendee of a mobile home within fifteen days of the sale of a mobile home, and to the vendee of a travel trailer as defined by section 57-55-01 within fifteen days of the sale of a travel trailer. In addition, this includes furnishing to the vendee of a manufactured home within fifteen days of the sale of a manufactured home an affidavit of affixation that is obtained from the county recorder in the county where the real property is affixed, a letter of confirmation, and a bill of sale that includes a statement as to whether there are any liens or encumbrances on the manufactured home. The bond must be filed with the director before the issuance of the license provided for under this chapter. The aggregate liability of the surety to all persons for all losses or damages may not exceed the amount of the bond. Any third party sustaining injury within the terms of the bond may proceed against the principal and surety without making the state a party to any proceeding. The bond may be canceled by the surety, as to future liability, by giving written notice by certified mail, addressed to the principal at the address stated in the bond, and to the department. Thirty days after the mailing of the notice, the bond is null and void as to any liability thereafter arising. The surety remains liable, subject to the terms, conditions, and provisions of the bond, until the effective date of the cancellation.

Source:

S.L. 1955, ch. 250, § 2; R.C. 1943, 1957 Supp., § 39-1802; S.L. 1961, ch. 253, § 8; 1969, ch. 353, § 1; 1971, ch. 380, § 1; 1975, ch. 357, § 1; 2005, ch. 338, § 2; 2013, ch. 307, § 4.

39-18-02.1. Disposition of fees.

Fees from registration of dealers must be deposited with the state treasurer and credited to the highway tax distribution fund.

Source:

S.L. 1979, ch. 427, § 1; 2007, ch. 316, § 4.

39-18-03. Titling and licensing of mobile homes, housetrailers, and travel trailers — License fee.

The owner of a travel trailer, housetrailer, or mobile home, who sells or transfers the title to such vehicle shall endorse an assignment and warranty of title upon the certificate of title for such vehicle, along with a statement as to whether there are liens or encumbrances thereon. The owner shall deliver the certificate of title to the purchaser within fifteen days after such sale if title passes to the purchaser. If the legal title does not pass to the purchaser under the contract for sale of the vehicle, the legal title owner shall endorse thereon a statement that the owner holds the lien, the date thereof, and the name of the purchaser, and shall send the certificate of title to the department with an application of the purchaser for a new certificate of title showing the name of the legal owner, the registered owner, the date of the lien of the legal owner, which certificate of title when issued must be returned by the department to the legal title owner; who shall retain the same in the owner’s possession until the terms of the contract are complied with by the purchaser, and thereupon, after showing that the lien has been paid and satisfied the owner shall deliver the certificate of title properly assigned to the purchaser. The purchaser or transferee shall present the endorsed and assigned certificate to the department, within thirty days after the receipt thereof, accompanied by a transfer fee of five dollars, and shall make an application for and obtain a new certificate of title for such vehicle. A penalty of not more than ten dollars may be imposed by the director for failure to present the certificate of title to the department as required by this section. Except when transported by a drive-away transporter duly registered and licensed under the laws of this state, no person may haul a mobile home, housetrailer, or travel trailer unless the same is first registered with and titled by the department, a certificate of title has been issued, and it displays a number plate issued by and under such regulations as the director may prescribe. The annual fee for such licensing is twenty dollars for mobile homes and housetrailers and twenty dollars for travel trailers.

The registration required hereunder must be on a calendar-year basis.

If such mobile home, housetrailer, or travel trailer enters the state carrying the current number plate of another state, no number plates may be required by the state of North Dakota for a period of thirty days.

The annual license fee provided for in this section does not preclude the taxation of certain mobile homes pursuant to chapter 57-55.

If such mobile home, housetrailer, or travel trailer remains stationary or parked within the state of North Dakota for a period of one year, no license may be required for that year, provided that nothing in this chapter permits the use of a dealer’s plate on such mobile home, housetrailer, or travel trailer after the same has been sold by the dealer to whom such plate was issued.

Source:

S.L. 1955, ch. 250, § 3; R.C. 1943, 1957 Supp., § 39-1803; S.L. 1961, ch. 253, § 9; 1963, ch. 265, § 5; 1969, ch. 354, § 1; 1971, ch. 380, § 2; 1971, ch. 381, § 1; 1973, ch. 311, § 1; 1975, ch. 357, § 2; 1983, ch. 427, § 2.

39-18-03.1. Park model trailer fee. [Repealed]

Expired under S.L. 1997, ch. 344, § 4.

39-18-03.2. Park model trailer fee.

  1. The owner of a park model trailer, as defined in subsection 2 of section 57-55-10, shall pay the department a fee of twenty dollars per calendar year to qualify for the exemption under section 57-55-10. The department shall issue a receipt for payment of the fee but payment of the fee does not confer any rights to the owner of a park model trailer which are not otherwise provided by law.
  2. In lieu of subsection 1, upon the request of an owner of a park model trailer, as defined in subsection 2 of section 57-55-10, the department shall register the trailer as a travel trailer for a registration fee of twenty dollars per calendar year. The payment of the fee qualifies the trailer for an exemption under section 57-55-10. The department shall issue a number plate upon payment of the registration fee.
  3. Fees collected under this section must be deposited in the highway tax distribution fund.

Source:

S.L. 1999, ch. 357, § 1; 2005, ch. 339, § 1.

39-18-04. Safety devices and requirements.

Any new mobile home sold in the state of North Dakota and licensed under the provisions of this chapter must be equipped with combination taillight and stoplight controlled and operated from the driver’s seat of the propelling vehicle; such mobile home must further be equipped with brakes approved by the department, designed and capable of bringing to a stop such vehicle and mobile home within a distance of fifty feet [15.24 meters] when operated at a speed of twenty miles [32.19 kilometers] per hour. No person may drive any mobile home on the highways of this state unless the propelling vehicle is able to stop within the distance and in the manner prescribed herein.

Any new mobile home sold in the state of North Dakota and licensed under the provisions of this chapter must be equipped with a hitch or coupler which will comply with the regulations as established by the interstate commerce commission.

Source:

S.L. 1955, ch. 250, § 4; R.C. 1943, 1957 Supp., § 39-1804; S.L. 1973, ch. 312, § 1; 1975, ch. 348, § 15.

Cross-References.

Braking devices required on trailer generally, see § 39-21-32.

Mobile homes excluded from general definition of “trailer”, see § 39-01-01.

39-18-05. Width, length, and height of mobile home operated in the state of North Dakota — Oversize permits. [Repealed]

Repealed by S.L. 1985, ch. 440, § 5.

39-18-06. Suspension or revocation of dealer’s license.

The department may suspend or revoke any dealer’s license for failure of the licensee to comply with any of the laws of this state governing mobile home or manufactured home dealers, or for failure to comply with the reasonable rules and regulations of the department set up under chapter 28-32, but an order suspending or revoking a dealer’s license may not be made before a hearing at which the licensee must be given an opportunity to be heard.

Source:

S.L. 1955, ch. 250, § 6; R.C. 1943, 1957 Supp., § 39-1806; 2013, ch. 307, § 5.

39-18-07. Penalty.

Any person violating a provision of this chapter for which a penalty is not specifically provided is guilty of a class B misdemeanor.

Source:

S.L. 1955, ch. 250, § 7; R.C. 1943, 1957 Supp., § 39-1807; S.L. 1975, ch. 106, § 443; 1989, ch. 476, § 1; 1995, ch. 383, § 1.

Cross-References.

Classification of offenses, penalties, see § 12.1-32-01.

39-18-08. Sales by real estate broker or salesperson of used mobile home or manufactured home — Penalty.

Notwithstanding any other provision of law, a person licensed as a real estate broker or salesperson may sell or offer to sell, buy or offer to buy, solicit prospective purchasers of, solicit or obtain listings of, or negotiate the purchase, sale, or exchange of any used mobile home or manufactured home. For the purposes of this section, a used mobile home is a mobile home which has been previously sold by a mobile home dealer and a used manufactured home is a manufactured home that has been previously sold by a manufactured home dealer. Any person, including a person licensed as a real estate broker or salesperson, who obtains a listing for the sale or exchange of a used mobile home or manufactured home that is located in a mobile home park, as defined in section 23-10-01, shall provide notice of the listing within seven days after the listing is obtained, in writing, to the owner or operator of the mobile home park.

A real estate broker who engages in the activities authorized by this section may not maintain any place of business where two or more mobile homes are displayed and offered for sale by the broker, unless the broker is also licensed as a mobile home or manufactured home dealer under this chapter. A person who violates this section is guilty of an infraction.

Source:

S.L. 1975, ch. 358, § 1; 1979, ch. 428, § 1; 1981, ch. 400, § 1; 1983, ch. 442, § 1; 1995, ch. 383, § 2; 2013, ch. 307, § 6.

CHAPTER 39-19 Reciprocity Agreements, Arrangements, or Declarations

39-19-01. Director — Reciprocity powers.

The director may execute agreements, arrangements, or declarations involving the reciprocal use of the highways of this state by vehicles excepted in part or in full from registration requirements or mile tax payments in lieu thereof, or involving reciprocity between this state and any other state on matters relating to drivers’ licensing, financial responsibility, traffic law enforcement, vehicle sizes and weights, and vehicle inspection.

Source:

S.L. 1959, ch. 283, § 1; 1965, ch. 280, § 1; 1967, ch. 316, § 1; 1969, ch. 355, § 1; 1971, ch. 382, § 1; 1983, ch. 418, § 13.

Cross-References.

Reciprocal agreements regarding registration of motor vehicles, see § 39-04-18.

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

39-19-02. Secretary to commission. [Repealed]

Repealed by S.L. 1971, ch. 382, § 3.

39-19-03. Reciprocal use of highways.

No person may operate a vehicle upon the highways of this state unless the driver is licensed to operate a motor vehicle in this state or under a reciprocal agreement, arrangement, or declaration, has paid the mile tax in lieu of registration, or has complied with the requirements of a reciprocity agreement, arrangement, or declaration executed as provided in section 39-19-01.

Source:

S.L. 1959, ch. 283, § 3; 1969, ch. 355, § 2; 1971, ch. 382, § 2.

39-19-04. International registration plan — Multistate reciprocal agreement — Change of state agency.

The department, or the designated agency of the department acting directly or through the department, which has joined the international registration plan and multistate reciprocal agreement shall transfer such membership to the department. The department is authorized to expend the necessary fees required for membership. The provisions of the international registration plan, including any amendment to the plan, as agreed to by the department, are applicable to those vehicles engaged in interstate travel which are apportioned in North Dakota. The department may enforce and collect all penalties and fines allowed by the provisions of the international registration plan.

Source:

S.L. 1979, ch 429, § 1; 1983, ch. 418, § 14; 1989, ch. 477, § 1.

39-19-05. Agreements for joint operation of ports of entry.

The director may negotiate and enter into bilateral agreements with the appropriate officials of adjacent states, as provided herein:

  1. The agreements may provide for the manning and operation of jointly occupied ports of entry, for the collection of highway user fees, registration fees, permit fees, fuel taxes, and any other fees and taxes which may be prescribed by law or rule.
  2. The agreements may further provide for the collection of these fees and taxes by either party state at jointly occupied ports of entry before authorization is given for a vehicle to legally operate within that state or jurisdiction, and for the enforcement of safety, size and weight laws, and rules of the respective states.

Source:

S.L. 1983, ch. 443, § 1.

39-19-06. Unified carrier registration system.

The director may adopt all rules necessary to enable this state to participate in the unified carrier registration system. Any moneys derived from participation in the unified carrier registration program must be deposited in the highway fund.

Source:

S.L. 1993, ch. 272, § 2; 2007, ch. 337, § 2; 2013, ch. 288, § 3.

39-19-06.1. Single state insurance registration system. [Repealed]

Repealed by S.L. 2013, ch. 288, § 4.

CHAPTER 39-20 Chemical Test for Intoxication, Implied Consent

39-20-01. Implied consent to determine alcohol concentration and presence of drugs.

  1. Any individual who operates a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this state is deemed to have given consent, and shall consent, subject to the provisions of this chapter, 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, or combination thereof, in the individual’s blood, breath, oral fluid, or urine. As used in this chapter, the word “drug” means any drug or substance or combination of drugs or substances which renders an individual incapable of safely driving, and the words “chemical test” or “chemical analysis” mean any test to determine the alcohol concentration or presence of other drugs, or combination thereof, in the individual’s blood, breath, or urine, approved by the director of the state crime laboratory or the director’s designee under this chapter.
  2. The test or tests must be administered at the direction of a law enforcement officer only after placing the individual under arrest for violation of section 39-08-01 or an equivalent offense. For the purposes of this chapter, the taking into custody of a child under section 27-20.4-05 or an individual under twenty-one years of age satisfies the requirement of an arrest. The law enforcement officer shall determine which of the tests is to be used.
    1. The law enforcement officer shall inform the individual North Dakota law requires the individual to take a chemical test to determine whether the individual is under the influence of alcohol or drugs and refusal of the individual to submit to a test directed by the law enforcement officer may result in a revocation of the individual’s driving privileges for a minimum of one hundred eighty days and up to three years.
    2. If an individual refuses to submit to testing under this section, proof of the refusal is not admissible in any administrative proceeding under this chapter if the law enforcement officer fails to inform the individual as required under subdivision a.
  3. When an individual under the age of eighteen years is taken into custody for violating section 39-08-01 or an equivalent ordinance, the law enforcement officer shall attempt to contact the individual’s parent or legal guardian to explain the cause for the custody. Neither the law enforcement officer’s efforts to contact, nor any consultation with, a parent or legal guardian may be permitted to interfere with the administration of chemical testing requirements under this chapter. The law enforcement officer shall mail a notice to the parent or legal guardian of the minor within ten days after the test results are received or within ten days after the minor is taken into custody if the minor refuses to submit to testing. The notice must contain a statement of the test performed and the results of that test; or if the minor refuses to submit to the testing, a statement notifying of that fact. The attempt to contact or the contacting or notification of a parent or legal guardian is not a precondition to the admissibility of chemical test results or the finding of a consent to, or refusal of, chemical testing by the individual in custody.

Source:

S.L. 1959, ch. 286, § 1; 1961, ch. 269, § 1; 1983, ch. 415, § 24; 1983, ch. 444, § 1; 1985, ch. 429, § 11; 1987, ch. 460, § 9; 1989, ch. 478, § 1; 1995, ch. 299, § 2; 1997, ch. 334, § 2; 2005, ch. 195, § 16; 2005, ch. 330, § 5; 2011, ch. 288, § 13; 2013, ch. 301, § 11; 2015, ch. 268, § 9, effective April 15, 2015; 2017, ch. 108, § 15, effective April 21, 2017; 2017, ch. 268, § 4, effective August 1, 2017; 2019, ch. 322, § 3, effective August 1, 2019; 2021, ch. 172, § 24, effective May 3, 2021; 2021, ch. 245, § 34, effective July 1, 2021.

Effective Date.

The 2015 amendment of this section by section 9 of chapter 268, S.L. 2015 became effective April 15, 2015, pursuant to an emergency clause in section 15 of chapter 268, S.L. 2015.

Note.

Section 39-20-01 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 24 of Chapter 172, Session Laws 2021, House Bill 1213; and Section 34 of Chapter 245, Session Laws 2021, House Bill 1035.

Section 39-20-01 was amended 2 times by the 2017 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 15 of Chapter 108, Session Laws 2017, House Bill 1041; and Section 4 of Chapter 268, Session Laws 2017, Senate Bill 2176.

Section 39-20-01 was amended 2 times by the 2017 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 15 of Chapter 108, Session Laws 2017, House Bill 1041; and Section 4 of Chapter 268, Session Laws 2017, Senate Bill 2176.

Cross-References.

Arrest without warrant, see § 29-06-15.

Persons under the influence of intoxicating liquor or controlled substances not to operate vehicle, see § 39-08-01.

Notes to Decisions

Constitutionality.

Because the constitutionality of implied consent laws as an unconstitutional condition had not been briefed or argued by either party in any meaningful way, the supreme court did not address the issue. McCoy v. North Dakota DOT, 2014 ND 119, 848 N.W.2d 659, 2014 N.D. LEXIS 134 (N.D. 2014).

North Dakota's implied consent law as challenged, either on its face or as applied, does not violate the Fourth Amendment of the United States Constitution applying either general Fourth Amendment principles or under the doctrine of unconstitutional conditions. Beylund v. Levi, 2015 ND 18, 859 N.W.2d 403, 2015 N.D. LEXIS 19 (N.D. 2015), vacated, 579 U.S. 438, 136 S. Ct. 2160, 195 L. Ed. 2d 560, 2016 U.S. LEXIS 4058 (U.S. 2016).

In a case involving the suspension of an operator's driving privileges, the implied consent law did not violate the unconstitutional conditions doctrine; the argument had already been considered and rejected in Beylund v. Levi, 2015 ND 18, 859 N.W.2d 403.Rounkles v. Levi, 2015 ND 128, 863 N.W.2d 910, 2015 N.D. LEXIS 117 (N.D. 2015), cert. denied, — U.S. —, 136 S. Ct. 2539, 195 L. Ed. 2d 868, 2016 U.S. LEXIS 4285 (U.S. 2016).

Because a driver pointed to no authority for his interpretation of the implied-consent law, the supreme court did not consider adequately briefed the issue that his license revocation violated the constitution and did not address the issue; unless the driver could show the North Dakota Constitution's search and seizure provision provided more protection than the Fourth Amendment of the federal constitution, his argument failed. Koehly v. Levi, 2016 ND 202, 886 N.W.2d 689, 2016 N.D. LEXIS 207 (N.D. 2016).

Admissibility of Test Results.

The trial court did not abuse its discretion in refusing to suppress the results of intoxilyzer test, where the first test record was defective and the test was aborted before defendant could provide breath samples, after the second test record was inserted defendant gave breath samples which were properly recorded, and both the defective and completed test records were retained and submitted. State v. Storbakken, 552 N.W.2d 78, 1996 N.D. LEXIS 189 (N.D. 1996).

Trial court erred in overturning the revocation of petitioner’s driver’s license where the blood-alcohol test results were properly admitted in evidence; because petitioner consented to the blood-alcohol test, petitioner was not harmed by a deputy’s failure to repeat the implied consent advisory. Peterson v. Ziegler, 2008 ND 115, 751 N.W.2d 201, 2008 N.D. LEXIS 116 (N.D. 2008).

Where a police officer read the implied consent advisory to defendant, where defendant was arrested after failing field sobriety tests and a preliminary breath test, and where defendant was then transferred to a hospital for a blood test to determine his blood-alcohol concentration level, the trial court did not err in denying defendant’s motion to suppress the results of the blood test and in rejecting defendant’s argument that the police officer was required to give him the mandatory implied consent advisory a second time before he submitted to the blood test. The evidence was admissible because the police officer complied with the procedures for implied consent under N.D.C.C. § 39-20-01, defendant’s consent was implied under the statute, and defendant did not affirmatively withdraw his consent to a blood test. State v. Salter, 2008 ND 230, 758 N.W.2d 702, 2008 N.D. LEXIS 206 (N.D. 2008).

Administrative hearing officer properly concluded that appellant was tested according to N.D.C.C. § 39-20-01 where an officer read appellant the implied consent advisories, requested appellant to submit to an onsite alcohol screening test, appellant agreed to take the test, and that agreement was not coerced given his testimony that he took the test to avoid criminal punishment. Schmidt v. Levi, 2016 ND 80, 877 N.W.2d 808, 2016 N.D. LEXIS 74 (N.D. 2016).

Breath test results were properly admitted where three breath tests were administered in order to obtain a single valid result, and there was no testimony or other evidence that appellant’s consent to the tests was involuntary. Krueger v. N.D. DOT, 2018 ND 108, 910 N.W.2d 850, 2018 N.D. LEXIS 124 (N.D. 2018).

In a case in which a motorist appealed from a district court judgment affirming a decision suspending his driving privileges for two years, the Supreme Court concluded the implied consent advisory was incomplete and thus inadmissible under N.D.C.C. § 39-20-01(3)(b). Because the motorist did not challenge the constitutionality of the statutes as applied to him, and because the State was not permitted to omit part of the statutory advisory to avoid a potential as-applied challenge, the admissibility statute was applied as written. Schoon v. N.D. DOT, 2018 ND 210, 917 N.W.2d 199, 2018 N.D. LEXIS 221 (N.D. 2018).

Admissibility requirement in N.D.C.C. § 39-20-01(3)(b) was not conditioned on an accurate advisory or a driver’s obtaining an understanding of the consequences of the choices available. Section 39-20-01(3)(b) simply conditions admissibility on whether the officer informed the driver of the contents of § 39-20-01(3)(a). Schoon v. N.D. DOT, 2018 ND 210, 917 N.W.2d 199, 2018 N.D. LEXIS 221 (N.D. 2018).

Because an officer’s implied consent advisory did not substantively comply with the requirement in N.D.C.C. § 39-20-01(3)(a) that the individual charged with driving under the influence must take a chemical test “directed by the law enforcement officer,” the result of defendant’s breath test was inadmissible under § 39-20-01(3)(b). City of Bismarck v. Vagts, 2019 ND 224, 932 N.W.2d 523, 2019 N.D. LEXIS 223 (N.D. 2019).

Admissions by Defendant.

Defendant, by telling the deputy she was driving and thereby providing the deputy with the initial facts upon which the deputy and department of transportation (DOT) relied in seeking the license revocation, was estopped from challenging those facts at administrative hearing for purpose of attacking the department’s jurisdiction to proceed in the case. Kraft v. Moore, 517 N.W.2d 643, 1994 N.D. LEXIS 120 (N.D. 1994).

Appellate Review.

Because the hearing officer considered the issue presented on appeal regarding the implied consent advisory and because appellee identified the issue in his specification of errors to the district court, the Supreme Court held that the issue was not waived. Therefore, the district court did not err in reversing the hearing officer’s decision to suspend appellee’s driving privileges. Jorgenson v. Sorel, 2020 ND 193, 948 N.W.2d 809, 2020 N.D. LEXIS 198 (N.D. 2020).

Arrest.
—In General.

A lawful arrest is a condition precedent to the administration of a chemical test under this section. Asbridge v. North Dakota State Highway Comm'r, 291 N.W.2d 739, 1980 N.D. LEXIS 235 (N.D. 1980).

Trial court properly suppressed results of chemical tests performed on blood and urine samples taken from the defendant where the defendant was not under arrest at the time the tests were administered and had not voluntarily consented to give the samples. State v. Anderson, 336 N.W.2d 634, 1983 N.D. LEXIS 389 (N.D. 1983).

Department of Transportation properly revoked a driver’s license because probable cause existed to arrest him without considering his onsite screening test where a police officer saw him cross the dividing line between the two lanes and miss the driving lane for an interstate exit, smelled alcohol on him, and the driver admitted to consuming alcohol, the implied consent law did not constitute an unconstitutional condition, and the driver had a reasonable opportunity to consult with an attorney. Herrman v. Dir., N.D. DOT, 2014 ND 129, 847 N.W.2d 768, 2014 N.D. LEXIS 127 (N.D. 2014).

It was error to revoke a driver’s driving privileges for refusal to submit to a chemical test, based on the non-member Indian driver’s purported arrest on tribal land, because the state did not assume criminal jurisdiction over tribal lands, so a tribe had jurisdiction, and a county deputy had no authority to arrest the driver, so there was no valid arrest. Olson v. N.D. DOT, 2018 ND 94, 909 N.W.2d 676, 2018 N.D. LEXIS 104 (N.D. 2018).

—Construction with Other Laws.

There is no conflict between this section and N.D.C.C. § 39-20-14 that requires an arrest to precede an on-site screening test. State v. Woytassek, 491 N.W.2d 709, 1992 N.D. LEXIS 217 (N.D. 1992).

Consensual Blood Tests.
—In General.

Findings of fact made by a Department of Transportation hearing officer that a driver was not incapable of refusal and that he refused to submit to a blood test were supported by a preponderance of the evidence because none of the law enforcement officers involved had any information that would lead them to believe that the driver had lost consciousness or was disoriented. Pokrzywinski v. Dir., North Dakota DOT, 2014 ND 131, 847 N.W.2d 776, 2014 N.D. LEXIS 135 (N.D. 2014).

District court did not err in affirming the decision of the Department of Transportation, which suspended a driver’s privileges, because the Department established an exception to the warrant requirement by establishing that the driver freely and voluntarily consented to a breath test after he officer read him the implied consent advisory; a driver’s decision to agree to take a test is not coerced simply because an administrative penalty has been attached to refusing the test. McCoy v. North Dakota DOT, 2014 ND 119, 848 N.W.2d 659, 2014 N.D. LEXIS 134 (N.D. 2014).

In deciding that defendant’s consent to take a chemical test was voluntary, the district court considered the totality of the circumstances and the district court’s determination was based on a correct application of the law. There was sufficient competent evidence to support the district court’s denial of defendant’s motion to suppress evidence and the decision did not go against the manifest weight of the evidence. State v. Smith, 2014 ND 152, 849 N.W.2d 599, 2014 N.D. LEXIS 162 (N.D. 2014).

At the time defendant agreed to take the Intoxilyzer 8000 test, nothing existed in the record to support a claim that defendant’s actual consent was involuntary or coerced. The record established that the deputy advised defendant of the implied consent law and asked defendant to take a chemical test and that defendant, when presented with the choice of either ratifying or withdrawing his implied consent, agreed to take the test. State v. Smith, 2014 ND 152, 849 N.W.2d 599, 2014 N.D. LEXIS 162 (N.D. 2014).

—Express Consent.

Where a driver of a vehicle involved in a collision voluntarily submitted to extraction of blood for alcohol-content test purposes, the provisions of this chapter, requiring that a person be placed under arrest and informed that he will be charged with driving while under the influence of intoxicating liquor before the person may be asked to take the test, did not apply. Wanna v. Miller, 136 N.W.2d 563, 1965 N.D. LEXIS 130 (N.D. 1965).

District court properly denied defendant's motion to suppress his consent to a blood test after he entered a conditional guilty plea to a charge of driving under the influence because the court considered defendant's circumstances, and after listening to the audio recording of the arrest, which left defendant ample opportunity to ask questions before he volunteered to take a blood test, found that defendant's consent was voluntary. State v. Montgomery, 2018 ND 20, 905 N.W.2d 754, 2018 N.D. LEXIS 31 (N.D. 2018).

Construction.

Phrase “any criminal penalties” in N.D.C.C. § 39-20-01(3)(a) includes all criminal penalties, including penalties for refusal of blood, breath, or urine tests and it is not consistent to read “any criminal penalties” as implicitly referring only to criminal penalties for refusing blood tests; if the officer requests a blood test, there is no reason to warn about consequences for refusing tests that are not requested, and the Legislative Assembly logically excepted warrantless blood tests from the warnings about criminal penalties. DeForest v. N.D. DOT, 2018 ND 224, 918 N.W.2d 43, 2018 N.D. LEXIS 233 (N.D. 2018).

Statutes as amended in 2017 did not intend to require a breath test as a first alternative in every case and did not intend to require a search warrant prior to reading the implied consent advisory and requesting a blood test. DeForest v. N.D. DOT, 2018 ND 224, 918 N.W.2d 43, 2018 N.D. LEXIS 233 (N.D. 2018).

Clause in N.D.C.C. § 39-20-01(3), “if . . . blood . . . may not inform . . . any criminal penalties” operates as condition to the “shall inform” clause in the second sentence. DeForest v. N.D. DOT, 2018 ND 224, 918 N.W.2d 43, 2018 N.D. LEXIS 233 (N.D. 2018).

Trial court did not err by affirming an administrative hearing officer’s decision to suspend defendant’s driving privileges for 180 days for driving under the influence based on the arresting officer’s failure to read him the implied consent advisory because he consented to a chemical breath test, and therefore the implied consent requirements of this section did not apply. Jundt v. N.D. DOT, 2020 ND 232, 951 N.W.2d 243, 2020 N.D. LEXIS 238 (N.D. 2020).

Criminal Proceedings Distinguished.
—In General.

Proceedings under N.D.C.C. ch. 39-20 are separate and distinct from criminal proceedings. The implied-consent statute and N.D.C.C. § 39-20-04 pertain to a person’s refusal to take a blood-alcohol test after he has been arrested and the resulting revocation of his driver’s license, not the admissibility of such evidence in a criminal trial. Thus, the procedural error in the administrative hearing has absolutely no bearing on the admissibility of evidence in the criminal proceeding. West Fargo v. Maring, 458 N.W.2d 318, 1990 N.D. LEXIS 141 (N.D. 1990).

Determination of Test.

A person who operates a motor vehicle upon the public highways of North Dakota is deemed to have consented not only to a test, but to “tests”, which refer to any of the four tests designated in this section. Which of these tests is to be used in any case is to be determined by the arresting officer. Timm v. State, 110 N.W.2d 359, 1961 N.D. LEXIS 86 (N.D. 1961).

Extraction of Blood As a Search.

Warrantless extraction of blood for purpose of a blood-alcohol test from defendant arrested for driving while intoxicated was properly taken as a search incident to arrest where delay to obtain a warrant would threaten destruction of evidence, defendant’s condition established a clear indication that a blood sample would produce evidence of intoxication, and blood sample was taken in a reasonable manner by a registered nurse in a hospital according to accepted medical standards. State v. Kimball, 361 N.W.2d 601, 1985 N.D. LEXIS 246 (N.D. 1985).

There was sufficient evidence to support the district court's decision that exigent circumstances permitted the warrantless blood-alcohol test because the circumstances included evidence about the limited staffing at law enforcement agencies on the evening of the Thanksgiving holiday, the investigation of a fatal accident rather than a “routine” drunk driving stop, and the natural dissipation of alcohol in defendant's blood system within the relevant timeframe. State v. Morales, 2015 ND 230, 869 N.W.2d 417, 2015 N.D. LEXIS 248 (N.D. 2015).

Incapacitated Driver.

An arrest is not a statutory precondition of directing a blood test of a driver incapacitated in a serious accident. Probable cause to believe that the incapacitated driver was under the influence of alcohol suffices. Wilhelmi v. Director of Dep't of Transp., 498 N.W.2d 150, 1993 N.D. LEXIS 51 (N.D. 1993).

Indian Reservation Exception.

A state police officer who arrests an enrolled member of an Indian tribe off the reservation for a crime committed off the reservation but transports him on to the reservation does not have the authority while on the reservation to request the Indian arrestee to take a chemical test off the reservation. Davis v. Director, N.D. Dep't of Transp., 467 N.W.2d 420, 1991 N.D. LEXIS 41 (N.D. 1991).

Informing Defendant of Charges.
—Advisory Must Be Read After Placing Individual Under Arrest.

To the extent that “inform,” as used in N.D.C.C. § 39-20-01(3)(b), means something more than the officer simply reading the implied-consent advisory, the Supreme Court holds that it must be conveyed in an objectively reasonable way calculated to be comprehensible to the driver. Ordinarily, reading the advisory will be sufficient. State v. Ayala, 2017 ND 126, 894 N.W.2d 865, 2017 N.D. LEXIS 119 (N.D. 2017).

District court properly suppressed the results of defendant’s chemical breath test after a city charged him with actual physical control of a vehicle while under the influence of alcohol because, while a police officer gave the warnings before he placed defendant under arrest, the statutory implied consent advisory must be read after placing an individual under arrest and before administering a chemical test to determine alcohol concentration or the presence of other drugs. City of Grand Forks v. Barendt, 2018 ND 272, 920 N.W.2d 735, 2018 N.D. LEXIS 266 (N.D. 2018).

—Reading Advisory.

In a driving under the influence of alcohol case, the district court did not err in finding that defendant was read a complete implied consent advisory under this statute and that she voluntarily consented to chemical testing because, although the trooper added expressions that were legally correct to an otherwise complete advisory, he did not omit any part of the advisory; and, although the district court did not specifically find whether the additional language read by the trooper materially misled or coerced defendant, after being informed of the additional words, the district court found defendant voluntarily consented to the breath test, implying she was not coerced or misled. State v. Dowdy, 2019 ND 50, 923 N.W.2d 109, 2019 N.D. LEXIS 34 (N.D. 2019).

It was clear from the facts that the officer was attempting to administer a chemical test under N.D.C.C. § 39-20-01. Specifically, a warrant was obtained and served, the officer read a partial implied consent advisory, defendant consented, and the urine test was administered. Because the urine test was a test administered under § 39-20-01, the officer was required to inform defendant as required under N.D.C.C. § 39-20-01(3)(a) for the test results to be admissible. Since the implied consent advisory given did not convey all substantive information required by statute, the test result was not admissible. City of Fargo v. Hofer, 2020 ND 252, 952 N.W.2d 58, 2020 N.D. LEXIS 264 (N.D. 2020).

—Sufficiency of Advisory.

District court erred in reversing the North Dakota Department of Transportation’s decision to suspend a driver’s license because a police officer’s recitation of the implied consent advisory, which excluded the word “punishable,” substantially with the statute so long as the word “crime” was communicated to the driver; in other words, a driver who was told that “refusal was a crime in the same manner as driving under the influence” was informed that “refusal was a crime.”Leclair v. Sorel, 2018 ND 255, 920 N.W.2d 306, 2018 N.D. LEXIS 278 (N.D. 2018).

District court erred in denying defendant’s motion to suppress because the consent advisory statute required specific information be communicated by law enforcement when requesting an individual arrested for driving under the influence submit to chemical testing, the advisory given to defendant was modified to exclude the reference to urine included in the statute, and the omission of that language could not be rectified by any other language contained in the statute. State v. Vigen, 2019 ND 134, 927 N.W.2d 430, 2019 N.D. LEXIS 128 (N.D. 2019).

—Appeal.

District court did not err in finding law enforcement had “informed” defendant of the required implied-consent advisory. Although the deputy did not read the advisory in Spanish, defendant's primary language, the record showed that the deputy repeated and rephrased portions of the advisory in an attempt to help defendant understand. State v. Ayala, 2017 ND 126, 894 N.W.2d 865, 2017 N.D. LEXIS 119 (N.D. 2017).

—Duty of Officer.

This section directs a law enforcement officer to inform a person arrested for DUI of the requirement that the arrestee submit to a chemical test or tests and the consequences of a refusal to undergo such testing. Davis v. Director, N.D. Dep't of Transp., 467 N.W.2d 420, 1991 N.D. LEXIS 41 (N.D. 1991).

Because Birchfield did not abrogate the requirements of providing a complete implied consent advisory under this statute, the supreme court requires a driver be informed of the entire statutory warning. State v. Bohe, 2018 ND 216, 917 N.W.2d 497, 2018 N.D. LEXIS 225 (N.D. 2018).

Although the deputy did not inform defendant about the penalties for refusal of breath and urine tests and omitted the information in the second sentence of N.D.C.C. § 39-20-01(3)(a), the deputy’s implied consent advisory satisfied the statute and the blood test was properly admitted. DeForest v. N.D. DOT, 2018 ND 224, 918 N.W.2d 43, 2018 N.D. LEXIS 233 (N.D. 2018).

Case law requires a specific warning from N.D.C.C. § 39-20-01(3)(a) be used in implied consent advisories, but it does not require that the only words an officer may say are those written in the statute; nothing indicates an intent by the legislature to restrict an officer’s speech to only the specific words written in the statute, and instead, the statute provides only the mandatory language that must be included in the advisory. Korb v. N.D. DOT, 2018 ND 226, 918 N.W.2d 49, 2018 N.D. LEXIS 230 (N.D. 2018).

Additional information must not materially mislead or coerce the driver; if the additional language provided by the officer is accurate, its presence does not alter the sufficiency of a complete, accurate implied consent advisory under N.D.C.C. § 39-20-01(3). Here, the officer did not act improperly by including accurate statutory information before the implied consent advisory, and the additional language read to defendant did not render his consent involuntary and evidence of the blood test was thus admissible. Korb v. N.D. DOT, 2018 ND 226, 918 N.W.2d 49, 2018 N.D. LEXIS 230 (N.D. 2018).

District court erred in granting defendant’s motion to suppress chemical test evidence and motion in limine because a deputy read defendant the implied consent advisory after his arrest and before administering the blood test, as statutorily required, the district court misapplied the law by finding that there was no need for the second implied consent advisory and that the second advisory was not accurate, and, although the district court considered the patrol car video evidence of the stop and stated it concluded from the totality of the circumstances that the consent was not voluntary, the court did not make any specific findings about the totality of the circumstances or otherwise indicate it properly considered them. State v. Vetter, 2019 ND 43, 923 N.W.2d 491, 2019 N.D. LEXIS 45 (N.D. 2019).

—English Fluency.

Implied consent has already been given by the driver through the act of driving - the implied consent advisory is given to allow an opportunity to ratify or withdraw consent. Where a driver has difficulty communicating with the officer owing to limited fluency in English, the test remains the same: was the implied-consent advisory presented in a way reasonably calculated to be comprehensible to the driver. State v. Ayala, 2017 ND 126, 894 N.W.2d 865, 2017 N.D. LEXIS 119 (N.D. 2017).

—In General.

Where circumstances of defendant’s arrest provided him with sufficient notice that the cause of his arrest was for driving or being in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor, fact that arresting officer did not recite to defendant the precise statutory language for the cause of his arrest did not make the arrest unlawful, and defendant’s driver’s license was properly revoked for failure to submit after the arrest to a requested chemical test. Asbridge v. North Dakota State Highway Comm'r, 291 N.W.2d 739, 1980 N.D. LEXIS 235 (N.D. 1980).

Nothing in the record suggested that the language prefacing the implied consent advisory, derived from N.D.C.C. § 39-20-01(1), was an inaccurate statement of law, nor did the record suggest the language rendered defendant’s consent involuntary; no error was found. Korb v. N.D. DOT, 2018 ND 226, 918 N.W.2d 49, 2018 N.D. LEXIS 230 (N.D. 2018).

Informing Defendant of Miranda Rights.

The fact that defendant was not informed of his Miranda rights upon arrest and prior to taking breathalyzer test did not constitute reversible error, because no “testimony” by defendant was admitted into evidence; giving a breath sample was not testimonial in nature, so it was not error to fail to read the driver his Miranda rights prior to the test. Pladson v. Hjelle, 368 N.W.2d 508, 1985 N.D. LEXIS 317 (N.D. 1985).

Informing Person Tested of Right to Additional Test.

Neither N.D.C.C. § 39-20-01, N.D.C.C. § 39-20-02, nor due process of law requires that a person given a breathalyzer test be informed of his right to an additional test under N.D.C.C. § 39-20-02. State v. Rambousek, 358 N.W.2d 223, 1984 N.D. LEXIS 428 (N.D. 1984).

Minors.

A minor taken into custody for drunk driving has a qualified statutory right to have his or her parent contacted, if reasonable under the circumstances, and read the implied consent advisory prior to administration of a chemical test. Olson v. North Dakota Dep't of Transp. Director, 523 N.W.2d 258, 1994 N.D. LEXIS 222 (N.D. 1994).

This section does not require police officers to contact the parents of juveniles before asking the minors common sense investigatory questions during traffic stops. Russell v. Z.C.B. (In the Interest of Z.C.B.), 2003 ND 151, 669 N.W.2d 478, 2003 N.D. LEXIS 165 (N.D. 2003).

Defendant juvenile was denied his statutory rights under N.D.C.C. § 39-20-01, when he was not given an opportunity to consult with his parents or counsel before submitting to an Intoxilyzer test, as allowing him an opportunity to consult with his parents would not have materially interfered with the administration of a timely and accurate chemical test; suppression of the results of the Intoxilyzer test was an appropriate remedy for the officer’s violation. Turner v. R.P. (In re R.P.), 2008 ND 39, 745 N.W.2d 642, 2008 N.D. LEXIS 39 (N.D. 2008).

Juvenile has a statutory right to a reasonable opportunity to consult with a parent, guardian, custodian, or legal counsel before submitting to chemical testing when providing the opportunity to consult does not materially interfere with administration of the chemical test. Turner v. R.P. (In re R.P.), 2008 ND 39, 745 N.W.2d 642, 2008 N.D. LEXIS 39 (N.D. 2008).

Right to counsel provision of the Uniform Juvenile Court Act, embodied in N.D.C.C. § 27-20-26, provides juveniles a limited right to counsel before deciding whether to consent to chemical testing under N.D.C.C. § 39-20-01. Turner v. R.P. (In re R.P.), 2008 ND 39, 745 N.W.2d 642, 2008 N.D. LEXIS 39 (N.D. 2008).

Nature of Proceedings.

Proceedings under this chapter are civil in nature. Asbridge v. North Dakota State Highway Comm'r, 291 N.W.2d 739, 1980 N.D. LEXIS 235 (N.D. 1980).

Officer.

There is no provision in this section that the arresting officer is the only law enforcement official who can request that the arrested person submit to the test or give the implied consent advisory. Neset v. North Dakota State Highway Comm'r, 388 N.W.2d 860, 1986 N.D. LEXIS 326 (N.D. 1986).

Physician-Patient Privilege.

Because the blood is not taken for purpose of diagnosis or treatment of an injury or disease, results of analyses of blood samples taken pursuant to the implied consent law are not protected by the physician-patient privilege. State v. Erickson, 241 N.W.2d 854, 1976 N.D. LEXIS 224 (N.D. 1976).

Purpose.

The object of the legislative assembly in enacting this section was clearly to determine the alcoholic content of the blood of persons who are suspected of operating motor vehicles upon the public highways while under the influence of intoxicating beverages. Timm v. State, 110 N.W.2d 359, 1961 N.D. LEXIS 86 (N.D. 1961).

The purpose of the implied consent law is to discourage individuals from driving an automobile while under the influence of intoxicants; to revoke the driving privileges of those persons who do drive while intoxicated; and to provide an efficient means of gathering reliable evidence of intoxication or nonintoxication. Asbridge v. North Dakota State Highway Comm'r, 291 N.W.2d 739, 1980 N.D. LEXIS 235 (N.D. 1980).

The primary intent of this section is to apprise the individual of the consequences of a refusal to submit to the test. Neset v. North Dakota State Highway Comm'r, 388 N.W.2d 860, 1986 N.D. LEXIS 326 (N.D. 1986).

The purpose of this chapter is to protect the public by preventing persons under the influence of intoxicants from driving. Ding v. Director, North Dakota Dep't of Transp., 484 N.W.2d 496, 1992 N.D. LEXIS 82 (N.D. 1992).

Refusal to Submit to Test.
—Constitutionality.

Use of defendant's silence as a refusal was not a violation of his Fifth Amendment protection against self-incrimination, nor contrary to the protections of Miranda v. Arizona, 384 U.S. 436 (1966), when coupled with the North Dakota implied consent advisory. State v. Bauer, 2015 ND 132, 863 N.W.2d 534, 2015 N.D. LEXIS 130 (N.D. 2015).

—In General.

Where highway user refused to submit to a blood test, designated by patrolman who arrested him, to determine the alcoholic content of his blood, highway commissioner was justified in revoking his driver’s license because of such refusal. Timm v. State, 110 N.W.2d 359, 1961 N.D. LEXIS 86 (N.D. 1961).

Where defendant agreed to submit to blood test but changed his mind and offered to submit to Breathalyzer test instead, defendant’s refusal to submit to test chosen by arresting officer constituted refusal under this section and rendered him subject to license revocation proceedings even though officer’s refusal to allow Breathalyzer test was due to his erroneous belief that its result would be inadmissible. Clairmont v. Hjelle, 234 N.W.2d 13, 1975 N.D. LEXIS 119 (N.D. 1975).

Defendant’s refusal to submit to a chemical test could not be revoked or remedied by his later request to be given the test where defendant had left the police station and was not in custody or observation for a short time between the initial refusal and the later request to be given the test. Asbridge v. North Dakota State Highway Comm'r, 291 N.W.2d 739, 1980 N.D. LEXIS 235 (N.D. 1980).

While N.D.C.C. § 39-20-04 gives a person right to refuse to take a blood-alcohol test, person must affirmatively refuse to participate in test in order to effectively withdraw implied consent given state as provided in this section; therefore, driver did not effectively revoke his implied consent to have a blood-alcohol test administered to him, and results of such test were properly admissible as evidence, where, although he refused to sign request and notice form concerning test, he participated in test and had been read implied consent advisory required by this section. State v. Mertz, 362 N.W.2d 410, 1985 N.D. LEXIS 255 (N.D. 1985).

N.D.C.C. § 39-20-04 specifies that if a person refuses to submit to testing under this section or N.D.C.C. § 39-20-14, none shall be given. This language requires an affirmative refusal to take the test. State v. Solberg, 381 N.W.2d 197, 1986 N.D. LEXIS 255 (N.D. 1986).

After 20 to 25 minutes of unsuccessfully trying to persuade arrested driver to submit to a chemical test, the police officer abandoned his efforts; the hearing officer properly concluded that driver’s continually avoiding or ignoring the officer’s request for a test effectively constituted refusal to submit to the test, and the revocation of the driver’s license was in accordance with the law. Obrigewitch v. Dir., N.D. DOT, 2002 ND 177, 653 N.W.2d 73, 2002 N.D. LEXIS 227 (N.D. 2002).

Because a defendant did not clearly and unequivocally refuse to submit to a blood test following a citation for driving under the influence of intoxicating liquor but had merely attempted to place conditions on where the blood test would occur, defendant had consented to the test, defendant’s consent was implied by N.D.C.C. § 39-20-01, and defendant’s motion to suppress was properly denied. City of Bismarck v. Bullinger, 2010 ND 15, 777 N.W.2d 904, 2010 N.D. LEXIS 15 (N.D. 2010).

—Attempt to Cure.

Defendant’s “independent” test at the hospital after release from the county jail did not cure his refusal to be tested while in police custody. North Dakota Dep't of Transp. v. DuPaul, 487 N.W.2d 593, 1992 N.D. LEXIS 117 (N.D. 1992).

Officer was not required to accept independent blood test as a cure for driver’s refusal to submit to an on-site chemical screening test where officer did not arrest driver, because the legislature clearly did not authorize a driver to cure a refusal of on-site screening if he was not arrested. Scott v. North Dakota DOT, 557 N.W.2d 385, 1996 N.D. LEXIS 277 (N.D. 1996).

Driver could not obtain an independent test under this section to cure his refusal to submit to an on-site chemical screening test, alleging his extended and allegedly unreasonable detention was equivalent to an arrest, because, even if the detention was equivalent to an arrest, the officer did not inform the driver that he would be charged with an alcohol offense, and the officer did not direct a test under subsection (4). Scott v. North Dakota DOT, 557 N.W.2d 385, 1996 N.D. LEXIS 277 (N.D. 1996).

Although N.D.C.C. § 39-20-14(4) provides an individual's driving privileges must not be revoked for refusing to submit to a screening test if the individual provides a sufficient breath, blood, or urine sample for a chemical test requested under N.D.C.C. § 39-20-01 for the same incident, there is no corresponding language that the driver must be so informed for purposes of the administrative revocation proceeding. Castillo v. Levi, 2016 ND 253, 888 N.W.2d 190, 2016 N.D. LEXIS 250 (N.D. 2016).

District court did not err in affirming the order suspending the driver's driving privileges for refusing a breath test because a reasoning mind could have concluded the driver failed to consent to the test, and thus, failed to cure his earlier refusal since he did not unconditionally consent to the breath test; a person seeking to cure a prior refusal had to do so clearly and could not complain of an officer's reasonable interpretation of a conditional statement of willingness to take a test. Koehly v. Levi, 2016 ND 202, 886 N.W.2d 689, 2016 N.D. LEXIS 207 (N.D. 2016).

—Doctor’s Test.

Even if defendant were willing to consent to a test by a doctor, as he claimed, such a constricted consent was an effective refusal to take the test administered at the direction of the law enforcement officer. North Dakota Dep't of Transp. v. DuPaul, 487 N.W.2d 593, 1992 N.D. LEXIS 117 (N.D. 1992).

—Factors to Be Considered.

In prosecution for driving under the influence of intoxicating liquor, evidence regarding the fact that a chemical test for intoxication was refused to be taken by the defendant was not sufficient, standing alone and by itself, to establish the guilt of the defendant, but was a fact which, if proven, could be considered in the light of all other proven facts in deciding the question of guilt or innocence. State v. Murphy, 516 N.W.2d 285, 1994 N.D. LEXIS 112 (N.D. 1994).

Trial counsel’s failure to object or ask for a curative instruction when a law enforcement officer testified he asked the defendant to take a blood alcohol test before he was formally placed under arrest and the defendant refused was not an error rising to constitutional dimensions establishing ineffective assistance of counsel; the jury was not instructed that a refusal to submit to the blood alcohol test may be considered in deciding the question of guilt or innocence, and the failure to object may have been a matter of trial tactics. State v. Roberson, 586 N.W.2d 687, 1998 ND App 15, 1998 N.D. App. LEXIS 15 (N.D. Ct. App. 1998).

—No Valid Request for Testing.

Where an officer does not inform a driver that he or she “is or will be charged with” driving under the influence or actual physical control as required by this section, there has been no legally effective request for testing and the driver’s failure to submit to testing is not a “refusal” for purposes of this chapter. Throlson v. Backes, 466 N.W.2d 124, 1991 N.D. LEXIS 13 (N.D. 1991).

Where there was no valid request under this chapter until the officer afforded the driver his statutorily mandated right to consult an attorney, the driver’s subsequent failure to submit to testing was not a refusal which would support revocation of his license. Throlson v. Backes, 466 N.W.2d 124, 1991 N.D. LEXIS 13 (N.D. 1991).

District court did not err in reversing an administrative hearing officer’s decision revoking appellee’s driving privileges for a period of 180 days because appellee was read only a partial implied consent advisory that failed to inform him that refusing to take a chemical test could be treated as a crime and, thus, the request for testing was neither in compliance with this statute nor sufficient to result in a refusal to submit to testing. Accordingly, the administrative determination that appellee refused to take a chemical test was either not in compliance with the law or not supported by the administrative findings. Alvarado v. N.D. DOT, 2019 ND 231, 932 N.W.2d 911, 2019 N.D. LEXIS 237 (N.D. 2019).

Request to submit to testing must be made in accordance to this statute to support a determination that there has been a refusal to submit to testing under this statute; a request for testing subsequent to a partial implied consent warning is not a request to test under this statute. Alvarado v. N.D. DOT, 2019 ND 231, 932 N.W.2d 911, 2019 N.D. LEXIS 237 (N.D. 2019).

—Shown.

The failure to respond after being requested to take a blood test and a response only of wanting a doctor and a lawyer constitutes defendant’s refusal to be tested. North Dakota Dep't of Transp. v. DuPaul, 487 N.W.2d 593, 1992 N.D. LEXIS 117 (N.D. 1992).

Where officer attempted to administer on-site breath test to defendant and defendant failed to provide sufficient breath sample and officer suspected this was due to his blocking the air intake with his tongue, there was sufficient evidence of refusal of consent. Scott v. North Dakota DOT, 557 N.W.2d 385, 1996 N.D. LEXIS 277 (N.D. 1996).

When a medically qualified person is available and the record shows no other evidence of a justifiable reason to refuse a blood test, the demand to be taken to a hospital as a condition for the draw constitutes a refusal under N.D.C.C. ch. 39-20. Wetsch v. N.D. DOT, 2004 ND 93, 679 N.W.2d 282, 2004 N.D. LEXIS 192 (N.D. 2004).

Finding that petitioner refused a blood test after petitioner was arrested for driving while intoxicated was supported by a preponderance of the evidence where each time the officer read the implied consent to petitioner, the response was the same: petitioner swore at the officer and grumbled but would not submit. Hence, an order revoking petitioner’s driver’s license for three years was upheld. Grosgebauer v. N.D. DOT, 2008 ND 75, 747 N.W.2d 510, 2008 N.D. LEXIS 76 (N.D. 2008).

Driver’s license was properly revoked under the implied consent statute where a driver agreed to submit to a blood test only after the driver talked to a specific lawyer who was not home when the driver called from the hospital and left the lawyer a message; the driver refused to walk to the exam room for the test; and the driver then struggled with a deputy while leaving the hospital saying that the driver would submit but that the driver still wanted to speak to the lawyer first. Maisey v. N.D. DOT, 2009 ND 191, 775 N.W.2d 200, 2009 N.D. LEXIS 206 (N.D. 2009).

Suspension of driving privileges was proper, because N.D.C.C. § 39-20-05(3) by its terms specifically excluded from consideration at the administrative hearing whether the driver was informed of the consequences of refusal, and a reasoning mind could reasonably conclude that despite the driver’s verbal acquiescence to the chemical testing, the context in which the words were stated, his subsequent threats, and his refusal to cooperate with officers belied any intent to take the test and amounted to a refusal to do so. Gardner v. N.D. DOT, 2012 ND 223, 822 N.W.2d 55, 2012 N.D. LEXIS 227 (N.D. 2012).

—Urine Test.

District court properly entered an order granting defendant's motion to dismiss a criminal prosecution against him for refusing to submit to a warrantless urine test incident to arrest because, in the absence of narrowly crafted requirements addressing an arrestee's privacy interests and the preservation or use of other private information available from a urine test, a warrantless urine test was not a reasonable search incident to a valid arrest of defendant, a suspected impaired driver, and defendant could not be prosecuted for refusing to submit to an unconstitutional warrantless urine test incident to arrest. State v. Helm, 2017 ND 207, 901 N.W.2d 57, 2017 N.D. LEXIS 213 (N.D. 2017).

Warrantless urine test is not a reasonable search incident to a valid arrest of a suspected impaired driver, and the driver cannot be prosecuted for refusing to submit to an unconstitutional warrantless urine test incident to arrest. State v. Helm, 2017 ND 207, 901 N.W.2d 57, 2017 N.D. LEXIS 213 (N.D. 2017).

—Valid Request for Testing.

It is axiomatic that before there can be a “refusal” to submit to testing under this section, there must be a valid request for testing under the section. Throlson v. Backes, 466 N.W.2d 124, 1991 N.D. LEXIS 13 (N.D. 1991).

When defendant was arrested for driving under the influence, the officer advised defendant of the implied consent law, including the possible loss of his driving privileges; therefore, the requirements of N.D.C.C. § 39-20-01 were met and defendant’s consent to the blood test was implied. Defendant stated that he was not refusing to submit to the test, but wanted his attorney present; defendant’s quiet statement to the nurse at the hospital that he did not agree to the blood draw, coupled with his silence when the officer gave him an opportunity to clarify, failed to effectively withdraw his consent. State v. Johnson, 2009 ND 167, 772 N.W.2d 591, 2009 N.D. LEXIS 172 (N.D. 2009).

Right to Counsel.
—In General.

The duty to assure the integrity of a breath sample requires the officer to maintain observation of the subject, and necessarily limits the extent of the privacy available under the circumstances for a suspect’s consultation with counsel. Bickler v. North Dakota State Highway Comm'r, 423 N.W.2d 146, 1988 N.D. LEXIS 241 (N.D. 1988).

Out-of-earshot consultation adequately protects both the confidentiality of attorney-client consultation and the integrity of chemical tests; therefore, when an arrested person asks to consult with counsel before electing to take a chemical test he must be given the opportunity to do so out of police hearing, (not necessarily out of sight), and law enforcement must establish that such opportunity was provided. Bickler v. North Dakota State Highway Comm'r, 423 N.W.2d 146, 1988 N.D. LEXIS 241 (N.D. 1988).

—Effect on Denial in Suspension Proceeding.

Evidence of the results of an Intoxilyzer test was allowed in a license suspension proceeding even though the defendant was not allowed to consult an attorney before submitting to the test. Holte v. North Dakota State Highway Comm'r, 436 N.W.2d 250, 1989 N.D. LEXIS 47 (N.D. 1989).

—Reasonable Opportunity.

There is no rule that a police officer notify an accused about how long he may have to contact an attorney; circumstances will vary, and defendant had a reasonable opportunity to contact an attorney. Boyce v. Backes, 488 N.W.2d 45, 1992 N.D. LEXIS 161 (N.D. 1992).

Right to Remain Silent.

Arrested person does not have the constitutional right to remain silent when requested by a law enforcement officer to submit to a blood-alcohol test pursuant to this chapter as the Fifth Amendment privilege against self-incrimination does not apply under such circumstances. State v. Fields, 294 N.W.2d 404, 1980 N.D. LEXIS 261 (N.D. 1980).

Suppression of Test Results.
—In General.

The results of chemical tests administered at the direction of law enforcement officers may be suppressed, or charges dismissed, when a motorist is not afforded his statutory right to an independent test. State v. Dressler, 433 N.W.2d 549, 1988 N.D. App. LEXIS 12 (N.D. Ct. App. 1988).

In an appeal from a judgment of conviction for driving while under the influence of alcohol, where defendant filed three pretrial motions but none raised an issue about the sequence of the implied consent advisory and an arrest, his argument, raised for the first time during trial, was essentially that the result of that blood test was illegally obtained because of an improper law enforcement practice; motions to exclude evidence on that ground must be made prior to trial. State v. Schroeder, 524 N.W.2d 837, 1994 N.D. LEXIS 253 (N.D. 1994).

District court did not err in granting defendant's motion to suppress because an Intoxilyzer test result was inadmissible in the criminal proceeding in that the arresting officer did not provide defendant a complete chemical test implied consent advisory after defendant's arrest and before submission to the Intoxilyzer test. State v. O'Connor, 2016 ND 72, 877 N.W.2d 312, 2016 N.D. LEXIS 71 (N.D. 2016).

District court erred by failing to suppress evidence of blood test results as defendant was given an incomplete implied consent advisory because the deputy testified that he did not read the part of the advisory that stated that a refusal to take the blood test was a crime punishable in the same manner as driving under the influence. State v. Bohe, 2018 ND 216, 917 N.W.2d 497, 2018 N.D. LEXIS 225 (N.D. 2018).

District court did not err in denying defendant’s motion to suppress from evidence the results of a chemical test when the arresting officer who read the post-arrest implied consent warning was not the officer who conducted the testing because, as a matter of law, the statutory remedy requested by defendant of the exclusion of the test did not apply in that the case was a criminal proceeding and did not involve a refusal to take the chemical test. 2020 ND 144, 2020 N.D. LEXIS 151.

—Denial of Opportunity to Take Additional Test.

Where defendant requested he be administered a blood test at a hospital located a few hundred yards from the site of his arrest, police officer’s false and misleading statements concerning the availability of testing at that hospital and subsequent transportation of defendant to a hospital 23 miles away for administration of a blood test deprived defendant of a reasonable opportunity to exercise his statutory right to an additional test by a person of his own choosing; therefore, results of the officer-ordered test were properly suppressed. State v. Dressler, 433 N.W.2d 549, 1988 N.D. App. LEXIS 12 (N.D. Ct. App. 1988).

Testimony of Physicians.

Where emergency room doctor testified that his observations and examination of defendant charged with driving under the influence of alcohol were for the purpose of diagnosis and treatment of a possible closed head injury, the trial court erred in allowing doctor to testify about those observations and his opinion that defendant was under the influence of alcohol. State v. Schroeder, 524 N.W.2d 837, 1994 N.D. LEXIS 253 (N.D. 1994).

DECISIONS UNDER PRIOR LAW

Information to Arrested Person.

Because an arrested person does not have the constitutional right to remain silent to law enforcement officer’s request to submit to a blood-alcohol test pursuant to this chapter, the officer, if he gives the Miranda warnings prior to asking the person to submit to the test, should inform the person that if he refuses to take the test, whether by silence or negative response, his license is subject to suspension. State v. Fields, 294 N.W.2d 404 (N.D. 1980), overruled on other grounds, State v. Grant, 361 N.W.2d 243 (N.D. 1985), decided prior to the amendment to this section by Session Laws 1983, ch. 415. Hammeren v. North Dakota State Highway Comm'r, 315 N.W.2d 679, 1982 N.D. LEXIS 229 (N.D. 1982).

Collateral References.

Suspension or revocation of driver’s license for refusal to take sobriety test, 88 A.L.R.2d 1064.

Construction and application of statutes creating presumption or other inference of intoxication from specified percentages of alcohol present in system, 16 A.L.R.3d 748.

Unconscious driver, admissibility in criminal case of blood alcohol test where blood was taken from, 72 A.L.R.3d 325.

Admissibility in criminal case of evidence that accused refused to take test of intoxication, 26 A.L.R.4th 1112.

Drunk driving: Motorist’s right to private sobriety test, 45 A.L.R.4th 11.

Horizontal gaze nystagmus test: use in impaired driving prosecution, 60 A.L.R.4th 1129.

Sufficiency of showing of physical inability to take tests for driving while intoxicated to justify refusal, 68 A.L.R.4th 776.

Challenges to use of breath tests for drunk drivers based on claim that partition or conversion ratio between measured breath alcohol and actual blood alcohol is inaccurate, 90 A.L.R.4th 155.

Driving while intoxicated: Subsequent consent to sobriety test as affecting initial refusal, 28 A.L.R.5th 459.

Law Reviews.

Criminal Law — Accusatory Stage of Proceedings — Custody Test Requires Miranda Warnings after DWI Arrest, 57 N.D. L. Rev. 541 (1981).

North Dakota Implied Consent: An Historical Overview and Modern Adaptations, 58 N.D. L. Rev. 745 (1982).

Toward a Coordinated Judicial View of the Accuracy of Breath Testing Devices, 59 N.D. L. Rev. 329 (1983).

The Admission of Chemical Test Refusals After State v. Neville: Drunk Drivers Cannot Take the Fifth, 59 N.D. L. Rev. 349 (1983).

The Constitutional Dimensions of Discovery in DWI Cases, 59 N.D. L. Rev. 369 (1983).

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to driving under the influence, 66 N.D. L. Rev. 753 (1990).

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to driving while intoxicated, 66 N.D. L. Rev. 753 (1990).

Summary of 1991 North Dakota Supreme Court decisions relating to Criminal Law, 68 N.D. L. Rev. 758 (1991).

Summary of 1991 North Dakota Supreme Court decisions on relating to driving under the influence, 68 N.D. L. Rev. 758 (1991).

Summary of North Dakota Supreme Court Decisions on Administrative Law — Revocation of Driver’s License, 71 N.D. L. Rev. 841 (1995).

Summary of North Dakota Supreme Court Decisions on Criminal Law — Witnesses, 71 N.D. L. Rev. 841 (1995).

39-20-01.1. Chemical test of driver in serious bodily injury or fatal crashes.

  1. If the driver of a vehicle is involved in a crash resulting in the death of another individual, and there is probable cause to believe that the driver is in violation of section 39-08-01, a law enforcement officer shall request the driver to submit to a chemical test or tests of the driver’s blood, breath, or urine to determine the alcohol concentration or the presence of other drugs or substances, or both.
  2. If the driver of a vehicle is involved in a crash resulting in the serious bodily injury, as defined in section 12.1-01-04, of another individual, and there is probable cause to believe that the driver is in violation of section 39-08-01, a law enforcement officer shall request the driver to submit to a test or tests of the driver’s blood, breath, or urine to determine the alcohol concentration or the presence of other drugs or substances, or both.
  3. If the driver refuses to submit to a chemical test or tests of the driver’s blood, breath, or urine and exigent circumstances are not present, the law enforcement officer shall request a search warrant to compel the driver to submit to a chemical test or tests of the driver’s blood, breath, or urine to determine the alcohol concentration or the presence of other drugs or substances, or both.
  4. The approved methods of the director of the state crime laboratory or the director’s designee must be followed in collecting and preserving a sample of the driver’s blood, breath, or urine and conducting a chemical test or tests to determine the alcohol concentration or the presence of other drugs or substances, or both.

Source:

S.L. 1987, ch. 460, § 10; 2009, ch. 339, § 1; 2013, ch. 301, § 12.

Notes to Decisions

Exigent Circumstances.

Although a police officer was informed from a first responder that defendant smelled of alcohol following a fatal car accident, the officer was unable to get close enough to defendant to personally observe him because defendant was receiving life-saving medical treatment at the scene of the accident. The district court’s ruling that exigent circumstances permitted a warrantless blood-alcohol test was supported by sufficient competent evidence in the record and was not against the manifest weight of the evidence. State v. Sauter, 2018 ND 75, 908 N.W.2d 697, 2018 N.D. LEXIS 78 (N.D. 2018).

Omission of Part of Advisory.

District court properly denied defendant’s motion to dismiss the results of the chemical blood test he was given at the hospital for failure to provide a complete implied consent advisory because the circumstances of the case fell within the scope of the statute pertaining to the chemical testing of a driver involved in a crash resulting in serious bodily injury or death, and, while the omission of the part of the advisory that would have informed defendant that refusal to submit to a urine or breath test was a crime punishable in the same manner as driving under the influence was a substantive omission, the exclusionary rule did not apply. State v. Devine, 2020 ND 208, 950 N.W.2d 183, 2020 N.D. LEXIS 214 (N.D. 2020).

—In General.

This section was designed to create an exception to our implied-consent law that prohibits chemical testing for blood alcohol content when an individual chooses to refuse, but it does not dispense with the requirement for arrest prior to obtaining a blood sample. State v. Hansen, 444 N.W.2d 330, 1989 N.D. LEXIS 142 (N.D. 1989).

The intent of this section was to withdraw from a driver involved in an accident resulting in death or serious bodily injury the right to refuse the chemical test, but North Dakota has always required an arrest before the chemical test may be taken unless there is voluntary consent to the test without an arrest. State v. Hansen, 444 N.W.2d 330, 1989 N.D. LEXIS 142 (N.D. 1989).

—Incapacitated Driver.

An arrest is not a statutory precondition of directing a blood test of a driver incapacitated in a serious accident. Probable cause to believe that the incapacitated driver was under the influence of alcohol suffices. Wilhelmi v. Director of Dep't of Transp., 498 N.W.2d 150, 1993 N.D. LEXIS 51 (N.D. 1993).

Law Reviews.

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to search and seizure, 66 N.D. L. Rev. 753 (1990).

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

39-20-02. Individuals qualified to administer test and opportunity for additional test.

Only an individual medically qualified to draw blood, acting at the request of a law enforcement officer, may withdraw blood for the purpose of determining the alcohol concentration or presence of other drugs, or combination thereof, in the individual’s blood. The director of the state crime laboratory or the director’s designee shall determine the qualifications or credentials for being medically qualified to draw blood, and shall issue a list of approved designations including medical doctor and registered nurse. This limitation does not apply to the taking of a breath or urine specimen. The director of the state crime laboratory, or the director’s designee, shall electronically post a copy of the certified list of approved designations, including medical doctor and registered nurse, with the state crime laboratory division of the attorney general at the attorney general website and shall make the certified records required by this section available for download in a printable format on the attorney general website. The individual tested may have an individual of the individual’s choosing, who is medically qualified to draw blood, administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer with all costs of an additional test or tests to be the sole responsibility of the individual charged. The failure or inability to obtain an additional test by an individual does not preclude the admission of the test or tests taken at the direction of a law enforcement officer. Upon the request of the individual who is tested, a copy of the operational checklist and test record of a breath sample test or analytical report of a blood or urine sample test taken at the direction of the law enforcement officer must be made available to that individual by the law enforcement agency that administered the test or tests.

Source:

S.L. 1959, ch. 286, § 2; 1983, ch. 415, § 25; 1983, ch. 444, § 2; 1985, ch. 429, § 12; 1999, ch. 358, § 7; 2005, ch. 195, § 17; 2011, ch. 288, § 14.

Notes to Decisions

In General.

A motorist arrested for driving under the influence has a right to a chemical test in addition to the test taken at the direction of a law enforcement officer. State v. Messner, 481 N.W.2d 236, 1992 N.D. LEXIS 44 (N.D. 1992).

Under N.D.C.C. § 39-20-02, a law enforcement officer who effectuated a proper arrest and consent of the suspect to take a blood test within the officer’s territorial jurisdiction could, while outside the officer’s jurisdiction, request a qualified medical person to conduct the test; the driver’s blood test was conducted in accordance with the statutory requirements and his driving privileges were suspended in accordance with the law. Johnson v. N.D. DOT, 2004 ND 148, 683 N.W.2d 886, 2004 N.D. LEXIS 275 (N.D. 2004).

Because N.D.C.C. § 39-20-02 enumerates the particular genus, chemical tests, prior to stating the general, any administered, the any must be confined to tests of the kind previously and particularly articulated: chemical tests. City of West Fargo v. Williams, 2019 ND 161, 930 N.W.2d 102, 2019 N.D. LEXIS 167 (N.D. 2019).

Clear and Unambiguous Request.

A suspect’s request for an independent test must be clear and unambiguous. State v. Messner, 481 N.W.2d 236, 1992 N.D. LEXIS 44 (N.D. 1992).

An officer who deems a request to be ambiguous should attempt to clarify the matter with the driver. City of Grand Forks v. Risser, 512 N.W.2d 462, 1994 N.D. LEXIS 35 (N.D. 1994).

Credentials or Supervision Necessary.

These licensure provisions contemplate either medical credentials or medical supervision for personnel performing medical procedures on members of the public. State v. Barnick, 477 N.W.2d 200, 1991 N.D. LEXIS 183 (N.D. 1991).

This section does not authorize a self-styled phlebotomist, without medical credentials and without medical supervision, to draw blood. State v. Barnick, 477 N.W.2d 200, 1991 N.D. LEXIS 183 (N.D. 1991).

Defendant’s Right to Ampule Used in Breathalyzer Test.

Where defendant introduced no evidence which would establish a reasonable probability that an analysis of the breathalyzer test ampule would have provided material evidence favorable to him at trial, state was not required, as a matter of due process of law, to make the ampule available to defendant upon his request for independent testing. State v. Larson, 313 N.W.2d 750, 1981 N.D. LEXIS 368 (N.D. 1981).

Defendant’s Right to Breath Samples Taken During Breathalyzer Examination.

State is not required to provide a person with an independent sample of his breath taken at the time a breathalyzer examination is administered; however, a person has the right to have any qualified person of his own choosing administer a test in addition to the state’s examination to acquire breath samples for his own use; such procedure comports with constitutional due process requirements. State v. Larson, 313 N.W.2d 750, 1981 N.D. LEXIS 368 (N.D. 1981).

Detention.

In the absence of evidence that the minimum periods of detention ordered by a magistrate actually prejudiced the defendants’ right to present a defense and have a fair trial by preventing them from obtaining independent blood tests or other exculpatory evidence, the trial court’s dismissal of DUI charges was speculative and premature. City of Fargo v. Stutlien, 505 N.W.2d 738, 1993 N.D. LEXIS 203 (N.D. 1993).

Duty to Inform of Right to Additional Test.

An arresting officer is not required to inform the person tested of the availability of an additional test. State v. Payton, 481 N.W.2d 325, 1992 Iowa Sup. LEXIS 41 (Iowa 1992); City of Grand Forks v. Risser, 512 N.W.2d 462, 1994 N.D. LEXIS 35 (N.D. 1994).

In a prosecution for driving under the influence, an officer did not infringe on defendant’s rights by not informing him of the right to choose a clinic or a professional to perform an independent blood-alcohol test under N.D.C.C. § 39-20-02. It was the accused’s duty to exercise that right, and he did not specify a clinic or professional; therefore, he forfeited that right. State v. Tompkins, 2011 ND 61, 795 N.W.2d 351, 2011 N.D. LEXIS 52 (N.D. 2011).

Evidence.

Although person taking the blood sample did not testify, evidence was sufficient to establish that the person taking the blood sample was a registered nurse and was sufficient to establish reliability in the taking of the sample so as to permit the receipt of the result of the blood-alcohol test as evidence where a police officer, who was present when the sample was taken and had personal knowledge of the circumstances surrounding the taking of the sample, testified that the person who took the blood sample from the defendant was a registered nurse, the sample was taken under very clean and sterile conditions, and further testified as to the procedures utilized in the handling and mailing of the sample to the state toxicologist. State v. Hanson, 345 N.W.2d 845, 1984 N.D. LEXIS 257 (N.D. 1984).

The defendant could not have the results of his breathalyzer test suppressed on the ground that his request for an independent blood-alcohol test pursuant to this section was refused, where he did not make clear to any law enforcement officer that the blood test he requested was to be his own independent additional test. State v. Lorenzen, 401 N.W.2d 508, 1987 N.D. LEXIS 261 (N.D. 1987).

Inadmissible Blood Test.

Where police officer had authorization to perform pre-hospital emergency medical care only, officer’s non-medical emergency withdrawal of blood from plaintiff to determine plaintiff’s blood alcohol content was not authorized, and results of the blood test were inadmissible. Greaves v. North Dakota State Highway Comm'r, 432 N.W.2d 879, 1988 N.D. LEXIS 227 (N.D. 1988).

Limits on Right to Additional Test.
—In General.

This section permits the person tested to have an additional test administered by a person of the suspect’s choosing. The right to an additional test is necessarily limited by the availability of testing facilities and other circumstances that may bear on whether an additional testing opportunity is reasonably available. Boehler v. Backes, 461 N.W.2d 103, 1990 N.D. LEXIS 196 (N.D. 1990).

—Persons Not Arrested.

Officer was not required to accept independent blood test as a cure for driver’s refusal to submit to an on-site chemical screening test where officer did not arrest driver, because the legislature clearly did not authorize a driver to cure a refusal of on-site screening if he was not arrested. Scott v. North Dakota DOT, 557 N.W.2d 385, 1996 N.D. LEXIS 277 (N.D. 1996).

Opportunity for Additional Test.

Under this section, a person arrested for driving under the influence of alcohol must be afforded a reasonable opportunity to secure an additional test by a person of his own choosing if he requests one. The meaning of a “reasonable opportunity” to obtain an examination may vary depending on the circumstances. State v. Messner, 481 N.W.2d 236, 1992 N.D. LEXIS 44 (N.D. 1992).

Officer did not interfere with or deny a driver’s right to an independent chemical test under the implied consent law, N.D.C.C. § 39-20-02, because the driver’s question about whether she would be taken to the hospital for a blood draw was not a clear request for an independent test but was simply a question as to where the test would take place. Lange v. N.D. DOT, 2010 ND 201, 790 N.W.2d 28, 2010 N.D. LEXIS 203 (N.D. 2010).

N.D.C.C. § 39-20-02 authorizes a person tested under N.D.C.C. § 39-20-01 to obtain an independent test to rebut the officer’s chosen test. Law enforcement cannot administer a test under § 39-20-01 unless and until he has arrested the driver, and informed the driver that he is or will be charged with driving under the influence or being in actual physical control. An independent test cannot cure someone’s refusal to be tested unless that person has been in continuous police custody. To the extent that the Supreme Court of North Dakota may have previously implied a refusal can be cured with an independent test without also taking the chemical test requested by law enforcement, it holds now it cannot. However, in some cases, that reasonable opportunity for an independent test may arise before a test has been administered at the direction of a law enforcement officer. City of West Fargo v. Williams, 2019 ND 161, 930 N.W.2d 102, 2019 N.D. LEXIS 167 (N.D. 2019).

Plain reading of N.D.C.C. § 39-20-02 requires that the right to an additional independent test only arises when the driver submits to the chemical test requested by law enforcement. City of West Fargo v. Williams, 2019 ND 161, 930 N.W.2d 102, 2019 N.D. LEXIS 167 (N.D. 2019).

District court erred in finding that defendant was denied a reasonable opportunity to cure his refusal to submit to a chemical test where he had not requested an additional test after his refusal of the chemical test, nor had he consented or submitted to any chemical testing requested by law enforcement after being arrested and informed of his charges. The only testing that took place (field sobriety and on-site breath screening test) occurred prior to arrest and information of charges. City of West Fargo v. Williams, 2019 ND 161, 930 N.W.2d 102, 2019 N.D. LEXIS 167 (N.D. 2019).

Purpose.

In view of the plain meaning and purpose of this section, the term “qualified technician” is to be construed liberally. The obvious purpose of the statute is to assure that a medically trained and competent individual will withdraw the blood sample in an acceptable manner. Holler v. North Dakota Dep't of Transp. Director, 470 N.W.2d 616, 1991 N.D. LEXIS 108 (N.D. 1991).

Although there is no applicable licensure requirement in this case for a “qualified technician” to withdraw blood, the obvious purpose of the statute is to assure that a medically trained and competent individual will withdraw the blood sample in an acceptable manner. State v. Barnick, 477 N.W.2d 200, 1991 N.D. LEXIS 183 (N.D. 1991).

The restrictive provision of this section, limiting the procurement of blood samples to certain qualified persons, serves to protect not only the health of the person from whom the blood sample is taken, but also the reliability of the blood sample itself. Holler v. North Dakota Dep't of Transp. Director, 470 N.W.2d 616, 1991 N.D. LEXIS 108 (N.D. 1991).

Registered Nurse Qualified to Give Test.

Court rejected a motorist’s claim that the motorist reasonably refused to submit to a blood test unless the procedure was performed in a hospital because (1) under N.D.C.C. § 39-20-02, a registered nurse was medically qualified to draw blood and was available to perform the procedure on the motorist, and (2) case law did not establish, as argued by the motorist, a requirement that blood be drawn in a hospital in order to be reasonable, but case law merely recognized that circumstances might exist where a blood draw might be unreasonable because of an unjustified element of personal risk of infection or pain, and no such risks were found in this case. Wetsch v. N.D. DOT, 2004 ND 93, 679 N.W.2d 282, 2004 N.D. LEXIS 192 (N.D. 2004).

Right to Independent Test Not Denied.

Hearing officer’s conclusion that defendant was not prevented from having his own test was reasonable, where arresting officer gave defendant the opportunity to have his own test conducted at the hospital where the state’s test was conducted, although defendant had requested that his own test be conducted at another hospital nearby, but sheriff’s office had notice that the hospital chosen by defendant did not have qualified staff on duty and defendant failed to present evidence that he could have obtained a test at that hospital. Boehler v. Backes, 461 N.W.2d 103, 1990 N.D. LEXIS 196 (N.D. 1990).

Evidence was sufficient to show officer did not deny driver a reasonable opportunity to obtain an additional test, where driver asked for an independent saliva test and neither officer nor hospital staff knew how to conduct a saliva test, and driver did not request any other test. Tooley v. Moore, 1997 ND 120, 565 N.W.2d 46, 1997 N.D. LEXIS 130 (N.D. 1997).

Police officers did not interfere with or deny the defendant a reasonable opportunity to obtain an independent blood test when the defendant merely mentioned to officers his desire for such a test yet took no actions to obtain a test. City of Fargo v. Bakkerud, 1998 ND 77, 576 N.W.2d 858, 1998 N.D. LEXIS 80 (N.D. 1998).

State supreme court, reviewing the state transportation agency’s decision to suspend the motorist’s driving privileges under the Administrative Agencies Practice Act, N.D.C.C. § 28-32-01 et seq., was not authorized to grant the motorist relief under any ground set forth in N.D.C.C. § 28-32-46. Although the motorist claimed that police, who had arrested the motorist for driving while under the influence of intoxicating liquor, had the obligation to transport the motorist to the independent blood test the motorist requested under N.D.C.C. § 39-20-02, that statutory provision actually placed the duty on the motorist to arrange and take the independent blood test and the police did nothing to interfere with that right. Koenig v. N.D. DOT, 2012 ND 18, 810 N.W.2d 333, 2012 N.D. LEXIS 18 (N.D. 2012).

Suppression of Test Results.
—In General.

The results of chemical tests administered at the direction of law enforcement officers may be suppressed, or charges dismissed, when a motorist is not afforded his statutory right to an independent test. State v. Dressler, 433 N.W.2d 549, 1988 N.D. App. LEXIS 12 (N.D. Ct. App. 1988).

While the failure or inability to obtain an additional test by a person does not preclude admission of the test or tests taken at the direction of the law enforcement officer, where the arrestee did not obtain an independent test because he was denied a reasonable opportunity to do so by the police, there is neither a “failure” nor an “inability” to obtain a test, and the results of the officer-ordered test may be suppressed. State v. Dressler, 433 N.W.2d 549, 1988 N.D. App. LEXIS 12 (N.D. Ct. App. 1988).

—Denial of Opportunity to Take Additional Test.

Where defendant requested he be administered a blood test at a hospital located a few hundred yards from the site of his arrest, police officer’s false and misleading statements concerning the availability of testing at that hospital and subsequent transportation of defendant to a hospital 23 miles away for administration of a blood test deprived defendant of a reasonable opportunity to exercise his statutory right to an additional test by a person of his own choosing; therefore, results of the officer-ordered test were properly suppressed. State v. Dressler, 433 N.W.2d 549, 1988 N.D. App. LEXIS 12 (N.D. Ct. App. 1988).

Collateral References.

Drunk driving: Motorist’s right to private sobriety test, 45 A.L.R.4th 11.

Law Reviews.

North Dakota Supreme Court Review (State v. Tompkins),see 87 N.D. L. Rev. 419 (2011).

North Dakota Supreme Court Review (Lange v. North Dakota Department Of Transportation),see 87 N.D. L. Rev. 419 (2011).

39-20-03. Consent of person incapable of refusal not withdrawn. [Repealed]

Source:

S.L. 1959, ch. 286, § 3; 1961, ch. 269, § 2; 1969, ch. 356, § 1; repealed by 2017, ch. 268, § 9, effective August 1, 2017.

39-20-03.1. Action following test result for a resident operator.

If a person submits to a test under section 39-20-01 or 39-20-02 and the test shows that person to have an alcohol concentration of at least eight one-hundredths of one percent by weight or, with respect to a person under twenty-one years of age, an alcohol concentration of at least two one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving or being in actual physical control of a vehicle, the following procedures apply:

  1. The law enforcement officer shall immediately issue to that person a temporary operator’s permit if the person then has valid operating privileges, extending driving privileges for the next twenty-five days, or until earlier terminated by the decision of a hearing officer under section 39-20-05. The law enforcement officer shall sign and note the date on the temporary operator’s permit. The temporary operator’s permit serves as the director’s official notification to the person of the director’s intent to revoke, suspend, or deny driving privileges in this state.
  2. If a test administered under section 39-20-01 was by urine sample or by drawing blood as provided in section 39-20-02 and the individual tested is not a resident of an area in which the law enforcement officer has jurisdiction, the law enforcement officer shall, on receiving the analysis of the urine or blood from the director of the state crime laboratory or the director’s designee and if the analysis shows that individual had an alcohol concentration of at least eight one-hundredths of one percent by weight or, with respect to an individual under twenty-one years of age, an alcohol concentration of at least two one-hundredths of one percent by weight, either proceed in accordance with subsection 1 during that individual’s reappearance within the officer’s jurisdiction, proceed in accordance with subsection 3, or notify a law enforcement agency having jurisdiction where the individual lives. On that notification, that law enforcement agency shall, within twenty-four hours, forward a copy of the temporary operator’s permit to the law enforcement agency making the arrest or to the director. The law enforcement agency shall issue to that individual a temporary operator’s permit as provided in this section, and shall sign and date the permit as provided in subsection 1.
  3. If the test results indicate an alcohol concentration at or above the legal limit, the law enforcement agency making the arrest may mail a temporary operator’s permit to the individual who submitted to the blood or urine test, whether or not the individual is a resident of the area in which the law enforcement officer has jurisdiction. The third day after the mailing of the temporary operator’s permit is considered the date of issuance. Actual notice of the opportunity for a hearing under this section is deemed to have occurred seventy-two hours after the notice is mailed by regular mail to the address submitted by the individual to the law enforcement officer. The temporary operator’s permit serves as the director’s official notification to the individual of the director’s intent to revoke, suspend, or deny driving privileges in this state.
  4. The law enforcement officer, within five days of the issuance of the temporary operator’s permit, shall forward to the director a certified written report in the form required by the director. If the individual was issued a temporary operator’s permit because of the results of a test, the report must show that the officer had reasonable grounds to believe the individual had been driving or was in actual physical control of a motor vehicle while in violation of section 39-08-01, or equivalent ordinance, that the individual was lawfully arrested, that the individual was tested for alcohol concentration under this chapter, and that the results of the test show that the individual had an alcohol concentration of at least eight one-hundredths of one percent by weight or, with respect to an individual under twenty-one years of age, an alcohol concentration of at least two one-hundredths of one percent by weight. In addition to the operator’s license and report, the law enforcement officer shall forward to the director a certified copy of the operational checklist and test records of a breath test and a copy of the certified copy of the analytical report for a blood or urine test for all tests administered at the direction of the officer.
  5. An individual charged with a violation of section 39-08-01 or equivalent ordinance may elect to participate in the twenty-four seven sobriety program under chapter 54-12 in lieu of the administrative hearing under this chapter if the individual’s driver’s license is not subject to an unrelated suspension or revocation. Notwithstanding any other provision of law, an individual may not receive a temporary restricted operator’s license until after fourteen days after the administrative hearing on the offense under this chapter has been waived or held, or after fourteen days of the final appeal, whichever is longer. The director shall issue a temporary restricted driver’s license with the restriction the individual participate in the twenty-four seven sobriety program upon application by the individual with submission of proof of financial responsibility and proof of participation in the twenty-four seven sobriety program under chapter 54-12.

Source:

S.L. 1983, ch. 415, § 33; 1985, ch. 429, § 13; 1987, ch. 460, § 11; 1987, ch. 481, § 1; 1989, ch. 478, § 2; 1993, ch. 387, § 2; 1997, ch. 334, § 3; 2003, ch. 316, § 3; 2005, ch. 195, § 18; 2007, ch. 338, § 1; 2009, ch. 328, § 5; 2009, ch. 340, § 1; 2011, ch. 288, § 15; 2013, ch. 301, § 13; 2017, ch. 268, § 5, effective August 1, 2017.

Notes to Decisions

Construction.

“Performance of a chemical test” under this section, should not be interpreted differently depending on the type of chemical test administered. A chemical test meets the requirement of performance once the sample, whether it is blood, breath, or urine, is preserved for analysis; thus, when a breath test is given, all eight tests in the testing sequence need not be completed within two hours to satisfy this section. Phipps v. N.D. DOT, 2002 ND 112, 646 N.W.2d 704, 2002 N.D. LEXIS 144 (N.D. 2002).

For purposes of the “within two hours” requirement in this section, a driver’s performance of a chemical test at 2:49 a.m. was within two hours of 12:49 a.m., the time the driver was driving. Phipps v. N.D. DOT, 2002 ND 112, 646 N.W.2d 704, 2002 N.D. LEXIS 144 (N.D. 2002).

Consultation with Attorney.
—Time Limit.

Where defendant argued that if a test could reasonably be performed in ten minutes, there was no reason why an arrestee would not have one hour and fifty minutes to consult with an attorney; it is not appropriate to measure the reasonableness of an accused’s opportunity to contact an attorney by the maximum amount of time that the police may have to administer the most useful test to prove a licensee’s intoxication. Boyce v. Backes, 488 N.W.2d 45, 1992 N.D. LEXIS 161 (N.D. 1992).

Delay in Issuing Report and Notice.

Although the unexplained delay of more than one month between the testing of intoxicated motorist’s blood and the giving of notice of intention to suspend driving privileges did not strictly comply with “the letter of the law,” the court would seek to avoid absurd results; it would be an absurd result if, in the absence of any showing of harm or prejudice to motorist, the court were to hold the officer’s failure to strictly comply with the statute resulted in motorist retaining his driving privileges. Samdahl v. North Dakota Dep't of Transp. Director, 518 N.W.2d 714, 1994 N.D. LEXIS 143 (N.D. 1994).

Evidence.

The testing officer’s certified written report is a regularly kept record of the commissioner, and as such, its contents are entitled to prima facie effect. Salter v. Hjelle, 415 N.W.2d 801, 1987 N.D. LEXIS 438 (N.D. 1987).

The testing officer’s certified written report did not address itself to the issue of fair administration, let alone establish it, and did not provide the necessary foundation for a test record without a checklist. Salter v. Hjelle, 415 N.W.2d 801, 1987 N.D. LEXIS 438 (N.D. 1987).

Subsection (3) does not require the officer’s original certified copy of the checklist and test records be admitted at the hearing; the director’s certified copy is sufficient under N.D.C.C. § 39-20-05(4). Rudolph v. North Dakota DOT Director, 539 N.W.2d 63, 1995 N.D. LEXIS 185 (N.D. 1995).

District court properly affirmed a decision by the Department of Transportation suspending defendant's driving privileges for 91 days because the hearing officer did not abuse her discretion in admitting the results of defendant's blood test or the foundational documents where the documents introduced into evidence and certified by the director of the state crime laboratory and a trooper's testimony established that defendant's blood sample was properly obtained, the blood test was fairly administered, an approved method was used, and the test was performed by an authorized person. Filkowski v. Dir., N.D. Dep't of Transp., 2015 ND 104, 862 N.W.2d 785, 2015 N.D. LEXIS 100 (N.D. 2015).

Failure to Forward License.

When a motorist fails a blood alcohol test, while this section requires the officer to forward the operator’s license to the director of the department of transportation, the failure to do so does not destroy the director’s jurisdiction to suspend a violator’s driving privileges, as a contrary holding would defeat the legislature’s intent to protect the public from potential hazards posed by intoxicated drivers. Schwind v. Director, N.D. Dep't of Transp., 462 N.W.2d 147, 1990 N.D. LEXIS 214 (N.D. 1990).

Forwarding of Test Results.
—In General.

Under subsection (3) of this section and N.D.C.C. § 39-20-05(4), the certified breath test operator does not have to be the person who personally forwards or transmits the checklist and test results to the department. Frost v. North Dakota Dep't of Transp., 487 N.W.2d 6, 1992 N.D. LEXIS 114 (N.D. 1992).

The command of this section that all tests be forwarded to department of transportation (DOT) is basic and mandatory; it precludes a police officer’s exercise of choice and requires the transmittal of “all tests.” The legislature has made it the hearing officer’s domain, not the police officer’s, to judge the foundational facts for the admissibility of test results and the weight to be given to each of those results. Therefore, a police officer’s failure to submit Intoxilyzer test records deprived DOT of authority to suspend defendant’s driver privileges. Bosch v. Moore, 517 N.W.2d 412, 1994 N.D. LEXIS 133 (N.D. 1994).

Department of Transportation lacked jurisdiction to suspend a driver’s driving privileges for driving under the influence, where a report and notice form did not indicate any test results, as required by N.D.C.C. § 39-20-03.1(3); inclusion of the test result in the arresting officer’s certified report to the Department was a basic and mandatory provision of the statute. Jorgensen v. N.D. DOT, 2005 ND 80, 695 N.W.2d 212, 2005 N.D. LEXIS 90 (N.D. 2005).

District court erred in applying the ten-day period for notice of a hearing in N.D.C.C. § 28-32-21(1)(d) to the proceeding to suspend the driver’s driving privileges; the notice complied with the requirements of N.D.C.C. ch. 39-20 and was reasonable, and the North Dakota Department of Transportation had the authority to suspend the driver’s driving privileges. Schaaf v. N.D. DOT, 2009 ND 145, 771 N.W.2d 237, 2009 N.D. LEXIS 145 (N.D. 2009).

—Certified Copy of Analytical Report.

Subsection (3) of this section does not require an arresting officer to forward to the department all records accompanying a driver’s blood test, but only a copy of the certified copy of the analytical report. Wingerter v. North Dakota Dep't of Transp., 530 N.W.2d 362, 1995 N.D. LEXIS 78 (N.D. 1995).

Trial court properly upheld an order suspending appellant’s driving privileges after appellant was arrested for DUI because although the arresting officer failed to follow the technical requirements, appellant failed to establish that the officer’s error was basic and mandatory to the North Dakota DOT’s authority to proceed; there was no finding that appellant was prejudiced by the officer’s erroneous certification of the Report and Notice form. Ike v. Dir., N.D. DOT, 2008 ND 85, 748 N.W.2d 692, 2008 N.D. LEXIS 86 (N.D. 2008).

—Discarded Sample.

Where a blood sample was discarded because only a small amount of blood was taken, and a second blood sample was taken and tested, no analytical report of the first sample was made and the mandate of subsection (3) was not met. The department was thereby deprived of authority to suspend the driver’s license privileges. Larson v. Moore, 1997 ND 227, 571 N.W.2d 151, 1997 N.D. LEXIS 290 (N.D. 1997).

—Requirements.

The statutory requirements for breath tests only require test records to be forwarded, not all documents or articles connected in any way with a breath test; the statute does not require the mouthpiece the driver blows into to be forwarded to the director. Lamb v. Moore, 539 N.W.2d 862, 1995 N.D. LEXIS 207 (N.D. 1995).

It was error to reverse the administrative suspension of a driver’s driving privileges when a law enforcement officer’s certified written report under N.D.C.C. § 39-20-03.1(4) did not include the phrase “by weight” with the results of the driver’s blood alcohol test because it was unclear how adding the phrase would provide more information to the driver, as (1) the report referred to N.D.C.C. ch. 39-20, (2) the officer noted the driver submitted to a breath test, and (3) the officer wrote the results in the report’s “Test Results” blank, quickly, conveniently, and certainly informing the driver what the officer relied on and letting the driver decide whether to seek a hearing. 2014 ND 24, 842 N.W.2d 877, 2014 N.D. LEXIS 34.

—Test Record.

Blank card, without data, is not a “test record” that must be forwarded to the director under this section. Lamb v. Moore, 539 N.W.2d 862, 1995 N.D. LEXIS 207 (N.D. 1995).

—Time Limit.

Subsection (3) does not require the analytical report from the office of the state toxicologist be forwarded within five days to the director of transportation. Erickson v. Director, N.D. Dep't of Transp., 507 N.W.2d 537, 1993 N.D. LEXIS 199 (N.D. 1993).

Hearing Officers May Draw Inferences.

The hearing officer could reasonably infer from the evidence that the report and notice form was actually received by the department within five days on November 10, 1994, not November 10, 1993, and that the date stamp showing otherwise was simply a mistake. Axtman v. Moore, 534 N.W.2d 802, 1995 N.D. LEXIS 131 (N.D. 1995).

Hearing officer did not err in finding it reasonable that report required to be forwarded to department of transportation within five days was received timely, though it was issued March 15, and showed a receipt date of March 14, made by a manually operated date stamp. Nelson v. Director, North Dakota DOT, 1997 ND 81, 562 N.W.2d 562, 1997 N.D. LEXIS 75 (N.D. 1997).

Jurisdiction.

The Director of Transportation had jurisdiction when the arresting officer forwarded a certified written report in the form required within five days of issuing a temporary operator’s permit. Kummer v. Backes, 486 N.W.2d 252, 1992 N.D. LEXIS 140 (N.D. 1992).

Affirmation of an order suspending the driver’s driving privileges for 180 days was improper because the Department of Transportation failed to transmit a record compiled in the administrative proceedings. Although the hearing officer did not abuse his discretion in setting the hearing date, the Department failed to certify a record on appeal to the district court, and there was no record on appeal establishing the Department’s authority under N.D.C.C. §§ 39-20-03.1 and 39-20-04.1 to suspend the driver’s driving privileges. Baesler v. N.D. DOT, 2012 ND 39, 812 N.W.2d 434, 2012 N.D. LEXIS 31 (N.D. 2012).

Personal Service.

Personal service of a report and notice, containing a temporary operator’s permit, is not required under this section; therefore, even though the North Dakota Department of Transportation did not have authority to revoke an out of state operator’s driving privileges if the person was not issued a temporary operator’s permit, the record indicated that the operator received the report and notice that was left on a jail elevator on the date of his arrest because he sought a hearing 4 days later. Haynes v. Dir., 2014 ND 161, 851 N.W.2d 172, 2014 N.D. LEXIS 169 (N.D. 2014).

Revocation of License Proper.

Revocation of the petitioner’s driving privileges was proper, because the petitioner had a reasonable opportunity to contact an attorney, when the petitioner waited over ten minutes before making a call, and rather than calling an attorney the petitioner called a friend; based on the testimony regarding the petitioner’s continued attempts to change the focus of the investigation, his refusal to follow instructions and his complaints about being uncomfortable in the officer’s patrol vehicle, a reasonable mind could have determined the petitioner was trying to delay the investigation. Bell v. N.D. DOT, 2012 ND 102, 816 N.W.2d 786, 2012 N.D. LEXIS 97 (N.D. 2012).

Trial court did not err in affirming a decision of the Department of Transportation (DOT) suspending an arrestee's driving privileges for two years because the implied consent laws did not violate the arrestee's constitutional rights, the Report and Notice form that was completed by a police officer was sufficient to give the DOT authority to suspend the arrestee's driving privileges where the officer checked the box “already stopped,” wrote an explanation as to why he lawfully approached the arrestee's vehicle, checked three of the boxes under the probable cause to arrest or lawfully detain category, and further wrote the reasons he believed the arrestee's body contained alcohol. Olson v. Levi, 2015 ND 250, 870 N.W.2d 222, 2015 N.D. LEXIS 258 (N.D. 2015).

Temporary Operator’s Permit.
—Facially Incomplete.

Although petitioner’s temporary operator’s permit may have been facially incomplete in that it was not marked “valid” or “invalid”, the permit was valid, and, having suffered no adverse consequences from the oversight, petitioner was deprived of no rights granted by subsection (1) of this section or the due process clause. Sabinash v. Director of the Dep't of Transp., 509 N.W.2d 61, 1993 N.D. LEXIS 220 (N.D. 1993).

Time.

Plain language requires that an officer issue to the person a temporary operator’s permit, but the statute does not require the temporary permit be issued “immediately” or include any other time requirement for issuance of the temporary permit. Therefore, an out of state operator did not show that he was prejudiced by a delay in issuing a temporary permit where an officer had to return to a police station to retrieve a report and notice. Haynes v. Dir., 2014 ND 161, 851 N.W.2d 172, 2014 N.D. LEXIS 169 (N.D. 2014).

Driver’s driving privileges were properly suspended because an officer complied with the statutory time limits for forwarding to the Director of the Department of Transportation (Department) a report on the driver being charged with having an alcohol concentration of at least eight one-hundredths of one percent by weight when the officer timely placed the report in an in-house mail bin, regardless of when a postmark showed the report was actually sent to the Department. Lindstrom v. N.D. DOT, 2019 ND 293, 936 N.W.2d 42, 2019 N.D. LEXIS 304 (N.D. 2019).

Time Limit for Testing.

This section requires only that the blood be drawn within two hours of the driving, not that it be analyzed within two hours. If properly preserved and analyzed pursuant to the methods promulgated by the state toxicologist, the results may be used to support a license suspension. Keepseagle v. Backes, 454 N.W.2d 312, 1990 N.D. LEXIS 92 (N.D. 1990).

Law Reviews.

North Dakota Supreme Court Review (Phipps v. North Dakota Department of Transportation, 2002 ND 112, 646 N.W.2d 704), see 79 N.D. L. Rev. 589 (2003).

Survey of decisions regarding driving while intoxicated, 67 N.D. L. Rev. 269 (1991).

Summary of North Dakota Supreme Court decisions on Administrative Law, 72 N.D. L. Rev. 763 (1996).

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

39-20-03.2. Action following test result or on refusing test by nonresident operator.

If a person licensed in another state refuses in this state to submit to a test provided under section 39-20-01 or 39-20-14, or who submits to a test under section 39-20-01 or 39-20-02 and the test results show the person to have an alcohol concentration of at least eight one-hundredths of one percent by weight or, with respect to a person under twenty-one years of age, an alcohol concentration of at least two one-hundredths of one percent by weight at the time of performance of a test within two hours after driving or being in physical control of a motor vehicle, the following procedures apply:

  1. Without taking possession of the person’s out-of-state operator’s license, the law enforcement officer shall issue to the person a notification of the test results and a temporary operator’s permit extending nonresident operating privileges in this state for twenty-five days from the date of issuance or until earlier terminated by the decision of a hearing officer under section 39-20-05. The temporary permit must be signed and dated by the officer and serves as the director’s official notification to the person of the director’s intent to revoke, suspend, or deny driving privileges in this state, and of the hearing procedures under this chapter.
  2. If the test was administered by urine sample or by drawing blood, the law enforcement officer, on reviewing the alcohol concentration analysis showing the individual had an alcohol concentration of at least eight one-hundredths of one percent by weight or, with respect to an individual under twenty-one years of age, an alcohol concentration of at least two one-hundredths of one percent by weight, shall mail or issue to the individual a notification of the test results, a temporary operator’s permit extending nonresident operating privileges in this state for twenty-five days from the date of mailing or issuance or until earlier terminated by the decision of a hearing officer under section 39-20-05, and notice of the intent to revoke, suspend, or deny driving privileges in this state, together with the notice provided under section 39-06.1-07 of the procedures available under this chapter. The temporary operator’s permit must be signed and dated by the officer. The third day after the mailing of the temporary operator’s permit is considered the date of issuance.
  3. The law enforcement officer, within five days of issuing the temporary operator’s permit, shall forward to the director a certified written report in the form required by the director and a certified copy of the operational checklist and test records of a breath test and a copy of the certified copy of the analytical report for a blood or urine test for all tests administered at the direction of the officer. If the individual was issued a temporary operator’s permit because of the individual’s refusal to submit to a test under sections 39-20-01 and 39-20-14, the report must include information as provided in section 39-20-04. If the individual was issued a temporary operator’s permit because of the results of a test, the report must show that the officer had reasonable grounds to believe the individual had been driving or was in actual physical control of a motor vehicle while in violation of section 39-08-01, or equivalent ordinance, that the individual was lawfully arrested, that the individual was tested for alcohol concentration under this chapter, and that the results of the test show that the individual had an alcohol concentration of at least eight one-hundredths of one percent by weight or, with respect to an individual under twenty-one years of age, an alcohol concentration of at least two one-hundredths of one percent by weight.

Source:

S.L. 1983, ch. 415, § 34; 1985, ch. 429, § 14; 1987, ch. 460, § 12; 1987, ch. 481, § 2; 1993, ch. 387, § 3; 1997, ch. 334, § 4; 2001, ch. 340, § 9; 2003, ch. 316, § 4; 2009, ch. 328, § 6; 2011, ch. 288, § 16; 2017, ch. 268, § 6, effective August 1, 2017.

Notes to Decisions

Officer’s Report.

North Dakota Department of Transportation (DOT) erred by suspending appellant’s driving privileges, because the officer’s failure to indicate his belief that appellant’s body contained alcohol made his report to the Director of the DOT under N.D.C.C. § 39-20-03.2(3) deficient. Morrow v. Ziegler, 2013 ND 28, 826 N.W.2d 912, 2013 N.D. LEXIS 31 (N.D. 2013).

Personal Service.

Personal service of a report and notice, containing a temporary operator’s permit, is not required under this section; therefore, even though the North Dakota Department of Transportation did not have authority to revoke an out of state operator’s driving privileges if the person was not issued a temporary operator’s permit, the record indicated that the operator received the report and notice that was left on a jail elevator on the date of his arrest because he sought a hearing 4 days later. Haynes v. Dir., 2014 ND 161, 851 N.W.2d 172, 2014 N.D. LEXIS 169 (N.D. 2014).

Time.

Plain language requires that an officer issue to the person a temporary operator’s permit, but the statute does not require the temporary permit be issued “immediately” or include any other time requirement for issuance of the temporary permit. Therefore, an out of state operator did not show that he was prejudiced by a delay in issuing a temporary permit where an officer had to return to a police station to retrieve a report and notice. Haynes v. Dir., 2014 ND 161, 851 N.W.2d 172, 2014 N.D. LEXIS 169 (N.D. 2014).

Collateral References.

Mental incapacity as justifying refusal to submit to tests for driving while intoxicated, 76 A.L.R.5th 597.

39-20-04. Revocation of privilege to drive motor vehicle upon refusal to submit to testing.

  1. If a person refuses to submit to testing under section 39-20-01 or 39-20-14, none may be given, but the law enforcement officer shall immediately take possession of the person’s operator’s license if it is then available and shall immediately issue to that person a temporary operator’s permit, if the person then has valid operating privileges, extending driving privileges for the next twenty-five days or until earlier terminated by a decision of a hearing officer under section 39-20-05. The law enforcement officer shall sign and note the date on the temporary operator’s permit. The temporary operator’s permit serves as the director’s official notification to the person of the director’s intent to revoke driving privileges in this state and of the hearing procedures under this chapter. The director, upon the receipt of that person’s operator’s license and a certified written report of the law enforcement officer in the form required by the director, forwarded by the officer within five days after issuing the temporary operator’s permit, showing that the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while in violation of section 39-08-01 or equivalent ordinance or, for purposes of section 39-20-14, had reason to believe that the person committed a moving traffic violation or was involved in a traffic accident as a driver, and in conjunction with the violation or accident the officer has, through the officer’s observations, formulated an opinion that the person’s body contains alcohol, that the person was lawfully arrested if applicable, and that the person had refused to submit to the test or tests under section 39-20-01 or 39-20-14, shall revoke that person’s license or permit to drive and any nonresident operating privilege for the appropriate period under this section, or if the person is a resident without a license or a permit to operate a motor vehicle in this state, the director shall deny to the person the issuance of a license or permit for the appropriate period under this section after the date of the alleged violation, subject to the opportunity for a prerevocation hearing and postrevocation review as provided in this chapter. In the revocation of the person’s operator’s license the director shall give credit for time in which the person was without an operator’s license after the day of the person’s refusal to submit to the test except that the director may not give credit for time in which the person retained driving privileges through a temporary operator’s permit issued under this section or section 39-20-03.2. The period of revocation or denial of issuance of a license or permit under this section is:
    1. One hundred eighty days if the person’s driving record shows that within the seven years preceding the most recent violation of this section, the person’s operator’s license has not previously been suspended, revoked, or issuance denied for a violation of this chapter or section 39-08-01 or equivalent ordinance.
    2. Two years if the person’s driving record shows that within the seven years preceding the most recent violation of this section, the person’s operator’s license has been once previously suspended, revoked, or issuance denied for a violation of this chapter or section 39-08-01 or equivalent ordinance.
    3. Three years if the person’s driving record shows that within the seven years preceding the most recent violation of this section, the person’s operator’s license has at least twice previously been suspended, revoked, or issuance denied under this chapter, or for a violation of section 39-08-01 or equivalent ordinance, or any combination of the same, and the suspensions, revocations, or denials resulted from at least two separate arrests.
  2. A person’s driving privileges are not subject to revocation if all of the following criteria are met:
    1. An administrative hearing is not held under section 39-20-05;
    2. The person mails an affidavit to the director within twenty-five days after the temporary operator’s permit is issued. The affidavit must state that the person:
      1. Intends to voluntarily plead guilty to violating section 39-08-01 or equivalent ordinance within twenty-five days after the temporary operator’s permit is issued;
      2. Agrees that the person’s driving privileges must be suspended as provided under section 39-06.1-10;
      3. Acknowledges the right to a section 39-20-05 administrative hearing and section 39-20-06 judicial review and voluntarily and knowingly waives these rights; and
      4. Agrees that the person’s driving privileges must be revoked as provided under this section without an administrative hearing or judicial review, if the person does not plead guilty within twenty-five days after the temporary operator’s permit is issued, or the court does not accept the guilty plea, or the guilty plea is withdrawn;
    3. The person pleads guilty to violating section 39-08-01 or equivalent ordinance within twenty-five days after the temporary operator’s permit is issued;
    4. The court accepts the person’s guilty plea and a notice of that fact is mailed to the director within twenty-five days after the temporary operator’s permit is issued; and
    5. A copy of the final order or judgment of conviction evidencing the acceptance of the person’s guilty plea is received by the director prior to the return or reinstatement of the person’s driving privileges.
  3. The court must mail a copy of an order granting a withdrawal of a guilty plea to violating section 39-08-01, or equivalent ordinance, to the director within ten days after it is ordered. Upon receipt of the order, the director shall immediately revoke the person’s driving privileges as provided under this section without providing an administrative hearing.

Source:

S.L. 1959, ch. 286, § 4; 1969, ch. 356, § 2; 1973, ch. 313, § 1; 1983, ch. 415, § 26; 1983, ch. 444, § 3; 1985, ch. 429, § 15; 1987, ch. 460, § 13; 1987, ch. 481, § 3; 1989, ch. 478, § 3; 1989, ch. 479, § 1; 1991, ch. 429, § 1; 1995, ch. 372, § 11; 2003, ch. 321, § 2; 2005, ch. 330, § 6; 2013, ch. 301, § 14; 2015, ch. 268, § 10, effective April 15, 2015.

Effective Date.

The 2015 amendment of this section by section 10 of chapter 268, S.L. 2015 became effective April 15, 2015, pursuant to an emergency clause in section 15 of chapter 268, S.L. 2015.

Cross-References.

Arrest without warrant, see § 29-06-15.

Penalties for driving while license suspended or revoked, see §§ 39-06-42, 39-06-43.

Notes to Decisions

In General.

If a driver violates N.D.C.C. § 39-08-01, and refuses to submit to a test to determine his blood alcohol content, his driver’s license can be revoked under this section. Fetzer v. Director, North Dakota Dep't of Transp., 474 N.W.2d 71, 1991 N.D. LEXIS 150 (N.D. 1991), overruled in part, Suelzle v. N.D. DOT, 2020 ND 206, 949 N.W.2d 862, 2020 N.D. LEXIS 211 (N.D. 2020).

The implied consent law provides that a refusal to submit to a chemical test by a driver arrested for driving under the influence will result in the administrative suspension of driving privileges. Ehrlich v. Backes, 477 N.W.2d 211, 1991 N.D. LEXIS 190 (N.D. 1991).

No doubt driving is an important privilege today, but a driver’s license is not constitutionally guaranteed. Rather, a driver’s license is subject to control and regulation by the state, although the privilege is protected by due process, and a regulated privilege is not a right. North Dakota Dep't of Transp. v. DuPaul, 487 N.W.2d 593, 1992 N.D. LEXIS 117 (N.D. 1992).

Constitutionality.

All persons who refuse to submit to a chemical test are treated in the same manner, and revocation of such persons’ operator’s licenses is mandatory, not discretionary, and is not unreasonable, capricious, or arbitrary even though another statute permits issuance of temporary, restricted license to persons convicted of certain offenses, including driving under the influence. Gableman v. Hjelle, 224 N.W.2d 379, 1974 N.D. LEXIS 134 (N.D. 1974).

Because the constitutionality of implied consent laws as an unconstitutional condition had not been briefed or argued by either party in any meaningful way, the supreme court did not address the issue. McCoy v. North Dakota DOT, 2014 ND 119, 848 N.W.2d 659, 2014 N.D. LEXIS 134 (N.D. 2014).

North Dakota's implied consent law as challenged, either on its face or as applied, does not violate the Fourth Amendment of the United States Constitution applying either general Fourth Amendment principles or under the doctrine of unconstitutional conditions. Beylund v. Levi, 2015 ND 18, 859 N.W.2d 403, 2015 N.D. LEXIS 19 (N.D. 2015), vacated, 579 U.S. 438, 136 S. Ct. 2160, 195 L. Ed. 2d 560, 2016 U.S. LEXIS 4058 (U.S. 2016).

Administrative Agencies Practice Act.

Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, is applicable to orders of revocation issued by the commissioner under this section. Asbridge v. North Dakota State Highway Comm'r, 291 N.W.2d 739, 1980 N.D. LEXIS 235 (N.D. 1980).

The provisions of the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, are applicable to an order of revocation issued under this section. Neset v. North Dakota State Highway Comm'r, 388 N.W.2d 860, 1986 N.D. LEXIS 326 (N.D. 1986).

Admissibility of Test Results.

A person must affirmatively refuse to participate in blood-alcohol test in order to effectively withdraw implied consent given state as provided in N.D.C.C. § 39-20-01; therefore, driver did not effectively revoke his implied consent to have a blood-alcohol test administered to him, and results of such test were properly admissible into evidence, where, although he refused to sign request and notice form concerning test, he participated in test and had been read implied consent advisory required by N.D.C.C. § 39-20-01. State v. Mertz, 362 N.W.2d 410, 1985 N.D. LEXIS 255 (N.D. 1985).

Breathalyzer results held admissible where evidence did not support defendant’s claim that he conditionally consented to breathalyzer test on the promise of police officer that he would also be afforded a blood test. State v. Solberg, 381 N.W.2d 197, 1986 N.D. LEXIS 255 (N.D. 1986).

Avoidance of Administrative Revocation.

Subsection (2) of this section lists the criteria to be met if a driver who pleads guilty to criminal charges is not to be subject to administrative revocation of his license for refusing a test. These criteria require that the driver not request an administrative hearing and that the driver, within 25 days after issuance of a temporary operator’s permit, both plead guilty to violating N.D.C.C. § 39-08-01 and notify the department of the plea. Fetzer v. Director, North Dakota Dep't of Transp., 474 N.W.2d 71, 1991 N.D. LEXIS 150 (N.D. 1991), overruled in part, Suelzle v. N.D. DOT, 2020 ND 206, 949 N.W.2d 862, 2020 N.D. LEXIS 211 (N.D. 2020).

Failure to make a timely request for hearing or to timely file an affidavit with the department results in an automatic revocation of the person’s driver’s privileges. Because a driver who fails to file a timely affidavit has no clear legal right to avoid revocation of driving privileges for refusing a chemical test, a trial court abuses its discretion in granting a writ of mandamus directing the department to substitute a 91-day suspension in lieu of the one-year revocation. Krabseth v. Moore, 1997 ND 224, 571 N.W.2d 146, 1997 N.D. LEXIS 280 (N.D. 1997).

Criminal Charges Immaterial.

Fact that criminal charge of driving under influence was dismissed, without hearing did not deprive highway commissioner of power to revoke driver’s license of one who had refused to submit to Breathalyzer test. Smestad v. Ellingson, 191 N.W.2d 799, 1971 N.D. LEXIS 109 (N.D. 1971).

Revocation of a driver’s license under this section is a civil proceeding and the dismissal or acquittal of the related criminal charge is irrelevant to the license revocation proceeding. Asbridge v. North Dakota State Highway Comm'r, 291 N.W.2d 739, 1980 N.D. LEXIS 235 (N.D. 1980).

Delay in Administering Test.

Although the chemical test should be administered without unreasonable delay, a delay for a reasonable period of time while an arrested person decides whether or not to submit to testing will not frustrate the purpose of the law, and where a driver at first refuses to take the test and then changes his mind within a reasonable time, the subsequent consent cures the first refusal if the test would still be accurate and would result in no substantial inconvenience or expense to the police and if the individual has been in police custody and under observation for the whole time since the arrest. Lund v. Hjelle, 224 N.W.2d 552, 1974 N.D. LEXIS 139 (N.D. 1974).

The two-hour limitation in N.D.C.C. § 39-20-04.1 narrows the reasonable period of time within which a person arrested for driving under the influence and who refuses to submit to a blood test may change his or her mind and consent to a blood test. Krehlik v. Moore, 542 N.W.2d 443, 1996 N.D. LEXIS 22 (N.D. 1996).

Double Jeopardy.

Administrative proceedings suspending drivers’ licenses are civil in nature, separate and distinct from any criminal proceedings from an arrest for violating N.D.C.C. § 39-08-01, and dismissal or acquittal of a related criminal charge is irrelevant to the administrative proceedings. State v. Zimmerman, 539 N.W.2d 49, 1995 N.D. LEXIS 181 (N.D. 1995).

Criminal and administrative proceedings for the same conduct do not constitute double jeopardy because the administrative action serves the remedial goal of protecting the public from impaired drivers, and the suspension of the license is not greatly disproportionate to the remedial goal. State v. Zimmerman, 539 N.W.2d 49, 1995 N.D. LEXIS 181 (N.D. 1995).

Evidence at Criminal Trial.

In a DUI case, the trial court did not err in admitting the evidence of defendant’s refusal to submit to a blood alcohol test, even though the highway commissioner was without jurisdiction to hold a hearing, as more than five days had elapsed between alleged defendant’s refusal and the transmission of the certified written report to the highway commissioner. Procedural error in administrative hearing had absolutely no bearing on admissibility of evidence in criminal proceeding. West Fargo v. Maring, 458 N.W.2d 318, 1990 N.D. LEXIS 141 (N.D. 1990).

Jurisdiction to Revoke.

Police officer’s failure to immediately give temporary operator’s permit to DUI suspect who refused to submit to chemical testing did not deprive Department of Transportation of jurisdiction to revoke the driver’s driving privileges. Dworshak v. Moore, 1998 ND 172, 583 N.W.2d 799, 1998 N.D. LEXIS 173 (N.D. 1998).

Officer’s Affidavit.

Police officer’s affidavit must affirmatively show: 1) that officer had reasonable grounds to believe arrested person had been driving or was in actual physical control of motor vehicle on public highway while under influence of intoxicating liquor; 2) that the person was placed under arrest; and 3) that he refused to submit to the test or tests. Agnew v. Hjelle, 216 N.W.2d 291, 1974 N.D. LEXIS 238 (N.D. 1974).

Revocation of driver’s license was not invalid where the hearing officer based his decision upon evidence presented at the hearing, not upon allegedly defective affidavit submitted by the arresting officer. Agnew v. Hjelle, 216 N.W.2d 291, 1974 N.D. LEXIS 238 (N.D. 1974).

Statement in arresting officer’s affidavit pertaining to the arrest and the words employed by such officer when he informed the defendant of the reason for the arrest could be used in license revocation hearing to support conclusion that defendant was placed under arrest, and that the arrest was lawful. Asbridge v. North Dakota State Highway Comm'r, 291 N.W.2d 739, 1980 N.D. LEXIS 235 (N.D. 1980).

Trial courts properly held that the North Dakota Department of Transportation had authority to revoke plaintiffs’ driving privileges after they were arrested for driving under the influence of alcohol and refused to consent to sobriety tests because N.D.C.C. § 39-20-04 did not require the police officers’ statements of probable cause to be included in a driver’s copy of the reports and notices. Whitecalfe v. N.D. DOT, 2007 ND 32, 727 N.W.2d 779, 2007 N.D. LEXIS 26 (N.D. 2007).

North Dakota Department of Transportation (DOT) erred by suspending appellant’s driving privileges, because the officer’s report and notice to the Director of the DOT was deficient under N.D.C.C. § 39-20-04 as the officer failed to indicate his belief that appellant’s body contained alcohol. Morrow v. Ziegler, 2013 ND 28, 826 N.W.2d 912, 2013 N.D. LEXIS 31 (N.D. 2013).

Report and notice sufficiently stated reasonable grounds for an officer to believe a driver drove under the influence of alcohol, for purposes of suspending the driver’s driving privilege, because the report indicated (1) there was an odor of alcohol, (2) the driver exceeded the speed limit, and (3) the driver refused onsite testing. Sutton v. N.D. DOT, 2019 ND 132, 927 N.W.2d 93, 2019 N.D. LEXIS 135 (N.D. 2019).

Reasonable Grounds.

Where evidence (described in opinion) supported decision of commissioner and of district court that patrolman had reasonable cause to believe that, at time of arrest, person was driving motor vehicle while under the influence of intoxicating liquor, revocation of driver’s license must be affirmed. Borman v. Tschida, 171 N.W.2d 757, 1969 N.D. LEXIS 77 (N.D. 1969).

An officer may stop a motorist under circumstances short of probable cause for arrest. Borman v. Tschida, 171 N.W.2d 757, 1969 N.D. LEXIS 77 (N.D. 1969); State v. Kolb, 239 N.W.2d 815, 1976 N.D. LEXIS 207 (N.D. 1976).

Where defendant’s vehicle was driven in erratic manner, defendant did not stop until after arresting officer had put on his signal lights and followed defendant considerable distance, defendant had moderate odor of alcohol on his breath, his eyes were bloodshot, he admitted he had been drinking, and he swayed and jerked during balance test, arresting officer had reasonable grounds to believe defendant had been driving while under the influence of alcohol. Witte v. Hjelle, 234 N.W.2d 16, 1975 N.D. LEXIS 118 (N.D. 1975).

Arresting officer had reasonable grounds to believe defendant was in actual physical control of a motor vehicle upon a public highway while under the influence of intoxicating liquor where officer found defendant slumped behind steering wheel of a car parked at an angle on a public street with its lights on and engine running, defendant’s speech was slurred, defendant smelled of alcohol, defendant admitted he had been drinking, and defendant stumbled and leaned against car for support in attempt to walk to the rear of the vehicle; under such circumstances, any error in administering an on-site chemical screening test was harmless error. Asbridge v. North Dakota State Highway Comm'r, 291 N.W.2d 739, 1980 N.D. LEXIS 235 (N.D. 1980).

As used in this section, the term “reasonable grounds” is synonymous with “probable cause” and “reasonable cause”. Asbridge v. North Dakota State Highway Comm'r, 291 N.W.2d 739, 1980 N.D. LEXIS 235 (N.D. 1980).

Where before a stop, officer received a radio dispatch describing a car that had struck a viaduct and a second radio message that the car’s “driving was awful,” where officer spotted defendant weaving in and out of traffic without signalling lane changes, where defendant’s car and license number closely matched the radioed description and location, the agency found that officer had articulable and reasonable grounds to stop defendant when officer observed defendant’s driving, and the evidence reasonably supported that finding. North Dakota Dep't of Transp. v. DuPaul, 487 N.W.2d 593, 1992 N.D. LEXIS 117 (N.D. 1992).

Leaving the presence of an officer in an aggressive manner, accelerating motorcycle at a high rate of speed, revving the engine, and screaming through the gears, supported hearing officer’s finding defendant’s driving was “erratic,” which, together with police officer’s belief defendant had been driving while under the influence of intoxicating liquor and the fact defendant did not have a motorcycle license, established probable cause to arrest defendant and supported hearing officer’s revocation of his driving privileges. Chadwick v. Moore, 551 N.W.2d 783, 1996 N.D. LEXIS 180 (N.D. 1996).

Deputy’s Report and Notice form showed that the deputy had probable cause to arrest a driver for driving under the influence of alcohol without a more detailed written statement of the facts where the deputy checked boxes on the form indicating that the driver was already stopped, there was an odor of alcohol, the driver had poor balance, and the driver failed field sobriety tests. Maisey v. N.D. DOT, 2009 ND 191, 775 N.W.2d 200, 2009 N.D. LEXIS 206 (N.D. 2009).

Department of Transportation hearing officer had the authority to suspend a driver’s privileges because the conclusion that the arresting officer included sufficient information on the report and notice form to show reasonable grounds to believe the driver had been driving while under the influence of intoxicating liquor was supported by the findings of fact; the driver was involved in a single vehicle motorcycle accident, and officers observed an odor of alcohol coming from him. Pokrzywinski v. Dir., North Dakota DOT, 2014 ND 131, 847 N.W.2d 776, 2014 N.D. LEXIS 135 (N.D. 2014).

Refusal to Take Test.

Petitioner who was arrested for probable cause for drunken driving and refused request to take Breathalyzer test on ground that it would tend to incriminate him came within the provisions of this section. Smestad v. Ellingson, 191 N.W.2d 799, 1971 N.D. LEXIS 109 (N.D. 1971).

Where defendant agreed to submit to blood test but changed his mind and offered to submit to Breathalyzer test instead, defendant’s refusal to submit to test chosen by arresting officer made him subject to license revocation proceedings even though officer’s refusal to allow Breathalyzer test was due to his erroneous belief that its result would be inadmissible. Clairmont v. Hjelle, 234 N.W.2d 13, 1975 N.D. LEXIS 119 (N.D. 1975).

Defendant’s refusal to submit to a chemical test could not be revoked or remedied by his later request to be given the test where defendant had left the police station and was not in custody or observation for a short time between the initial refusal and the later request to be given the test. Asbridge v. North Dakota State Highway Comm'r, 291 N.W.2d 739, 1980 N.D. LEXIS 235 (N.D. 1980).

This section specifies that if a person refuses to submit to testing under N.D.C.C. § 39-20-01 or 39-20-14, none shall be given. This language requires an affirmative refusal to take the test. State v. Solberg, 381 N.W.2d 197, 1986 N.D. LEXIS 255 (N.D. 1986).

A driver has only a conditional right to refuse a chemical test; among the conditions imposed upon the exercise of one’s right to refuse a chemical test are the revocation of the person’s license or permit to drive a vehicle and the admission in evidence of proof of refusal in civil or criminal actions. State v. Murphy, 527 N.W.2d 254, 1995 N.D. LEXIS 16 (N.D. 1995).

A driver can cure an initial refusal to submit to a blood alcohol test, notwithstanding the fact that the officer issued a temporary operator’s permit and mailed the report and notice form to the department of transportation by the time of the request. Krehlik v. Moore, 542 N.W.2d 443, 1996 N.D. LEXIS 22 (N.D. 1996).

After 20 to 25 minutes of unsuccessfully trying to persuade arrested driver to submit to a chemical test, the police officer abandoned his efforts; the hearing officer properly concluded that driver’s continually avoiding or ignoring the officer’s request for a test effectively constituted refusal to submit to the test, and the revocation of the driver’s license was in accordance with the law. Obrigewitch v. Dir., N.D. DOT, 2002 ND 177, 653 N.W.2d 73, 2002 N.D. LEXIS 227 (N.D. 2002).

Motorist’s refusal to submit to an onsite screening test pursuant to N.D.C.C. § 39-20-14 justified revocation of motorist’s license, as described in N.D.C.C. § 39-20-04(1)(a). Wetsch v. N.D. DOT, 2004 ND 93, 679 N.W.2d 282, 2004 N.D. LEXIS 192 (N.D. 2004).

Finding that petitioner refused a blood test after petitioner was arrested for driving while intoxicated was supported by a preponderance of the evidence where each time the officer read the implied consent to petitioner, the response was the same: petitioner swore at the officer and grumbled but would not submit. Grosgebauer v. N.D. DOT, 2008 ND 75, 747 N.W.2d 510, 2008 N.D. LEXIS 76 (N.D. 2008).

When defendant was arrested for driving under the influence, he told the arresting officer that he was not refusing to submit to a blood draw but wanted his attorney present; after he was unable to contact his attorney, a nurse proceeded with the blood test. Defendant’s quiet statement that he did not agree to the blood draw, coupled with his silence when given an opportunity to clarify, failed to effectively withdraw his consent for purposes of N.D.C.C. § 39-20-04. State v. Johnson, 2009 ND 167, 772 N.W.2d 591, 2009 N.D. LEXIS 172 (N.D. 2009).

Suspension of driving privileges was proper, because N.D.C.C. § 39-20-05(3) by its terms specifically excluded from consideration at the administrative hearing whether the driver was informed of the consequences of refusal, and a reasoning mind could reasonably conclude that despite the driver’s verbal acquiescence to the chemical testing, the context in which the words were stated, his subsequent threats, and his refusal to cooperate with officers belied any intent to take the test and amounted to a refusal to do so. Gardner v. N.D. DOT, 2012 ND 223, 822 N.W.2d 55, 2012 N.D. LEXIS 227 (N.D. 2012).

District court did not err in affirming the decision of the Department of Transportation, which suspended a driver’s privileges, because the Department established an exception to the warrant requirement by establishing that the driver freely and voluntarily consented to a breath test after he officer read him the implied consent advisory; a driver’s decision to agree to take a test is not coerced simply because an administrative penalty has been attached to refusing the test. McCoy v. North Dakota DOT, 2014 ND 119, 848 N.W.2d 659, 2014 N.D. LEXIS 134 (N.D. 2014).

Department of Transportation properly revoked a driver's driving privilege for refusal to submit to an onsite screening test of his breath because a law enforcement officer had a reasonable suspicion he was driving while impaired; the officer observed the driver's vehicle speeding and initiated a traffic stop, the driver had bloodshot watery eyes, and he admitted he had a couple of beers. Barrios-Flores v. Levi, 2017 ND 117, 894 N.W.2d 888, 2017 N.D. LEXIS 128 (N.D. 2017).

Restricted Driver’s License.

Where a driver’s license was revoked for refusal to submit to chemical testing, a hearing officer was not authorized to permit the driver to secure a restricted license. Keller v. Paris, 207 N.W.2d 239, 1973 N.D. LEXIS 175 (N.D. 1973).

Right to Counsel.

Proceedings under the implied consent law are civil in nature and there being no right to counsel in a civil proceeding, refusing to submit to a chemical test until counsel is consulted is an unreasonable refusal. Agnew v. Hjelle, 216 N.W.2d 291, 1974 N.D. LEXIS 238 (N.D. 1974); Lund v. Hjelle, 224 N.W.2d 552, 1974 N.D. LEXIS 139 (N.D. 1974).

The duty to assure the integrity of a breath sample requires the officer to maintain observation of the subject, and necessarily limits the extent of the privacy available under the circumstances for a suspect’s consultation with counsel. Bickler v. North Dakota State Highway Comm'r, 423 N.W.2d 146, 1988 N.D. LEXIS 241 (N.D. 1988).

Out-of-earshot consultation adequately protects both the confidentiality of attorney-client consultation and the integrity of chemical tests; therefore, when an arrested person asks to consult with counsel before electing to take a chemical test he must be given the opportunity to do so out of police hearing, (not necessarily out of sight), and law enforcement must establish that such opportunity was provided. Bickler v. North Dakota State Highway Comm'r, 423 N.W.2d 146, 1988 N.D. LEXIS 241 (N.D. 1988).

If an arrested person ask to consult with an attorney before deciding to take a chemical test, he must be given a reasonable opportunity to do so if it does not materially interfere with the administration of the test, and if he is not given a reasonable opportunity to do so under the circumstances, his failure to take the test is not a refusal upon which to revoke his license. Kuntz v. State Highway Comm'r, 405 N.W.2d 285, 1987 N.D. LEXIS 311 (N.D. 1987), limited, Jesser v. N.D. DOT, 2019 ND 287, 936 N.W.2d 102, 2019 N.D. LEXIS 295 (N.D. 2019).

Where driver requested but was not given a reasonable opportunity to consult with an attorney, his failure to take the intoxilyzer test was not a refusal upon which his license could be revoked. Baillie v. Moore, 522 N.W.2d 748, 1994 N.D. LEXIS 213 (N.D. 1994).

There is no rule that a police officer notify an accused about how long he may have to contact an attorney; circumstances will vary, and defendant had a reasonable opportunity to contact an attorney. Boyce v. Backes, 488 N.W.2d 45, 1992 N.D. LEXIS 161 (N.D. 1992).

If a DUI arrestee, upon being asked to submit to a chemical test, responds with any mention of a need for an attorney—to see one, to talk to one, to have one, etc.—the failure to allow the arrestee a reasonable opportunity to contact an attorney prevents the revocation of his license for refusal to take the test; refusal to take the test under these conditions is not the affirmative refusal necessary to revoke a license under this section. Baillie v. Moore, 522 N.W.2d 748, 1994 N.D. LEXIS 213 (N.D. 1994).

Decision suspending a driver’s license for one year was properly affirmed, under N.D.C.C. §§ 28-32-49, 28-32-46, because the driver was not denied a reasonable opportunity to speak with counsel because an arresting officer made attempts to contact an attorney for the driver, the driver suggested no other attorney with whom he wished to consult, and the driver did not ask for a phone or directory to use himself. Lies v. Dir., N.D. DOT, 2008 ND 30, 744 N.W.2d 783, 2008 N.D. LEXIS 26 (N.D. 2008).

Because the officers failed to abide by the Baillie rule in not providing a licensee with a reasonable opportunity to consult with an attorney after he made a qualifying affirmative mention of an attorney, the Department of Transportation could not revoke his driver's license under N.D.C.C. § 39-20-04 based upon his refusal to submit to chemical testing. Washburn v. Levi, 2015 ND 299, 872 N.W.2d 605, 2015 N.D. LEXIS 306 (N.D. 2015).

Revocation of a driving under the influence of alcohol arrestee's driving privileges was proper because a preponderance of the evidence supported the hearing officer's factual finding that the arrestee did not request to speak with an attorney before submitting to a chemical test; the arrestee's reference to “lawyer up,” which was mixed in with a barrage of profanity launched at the deputy was beyond the bright line standard against which a purported request for an attorney were judged. Cudmore v. Dir. of the N.D. DOT, 2016 ND 64, 877 N.W.2d 52, 2016 N.D. LEXIS 67 (N.D. 2016).

Temporary Operator’s License.

Driver whose license was revoked for failure to submit to chemical testing was given twenty-one day credit for period he was without his temporary operator’s license based on arresting officer’s failure to give him the temporary license after seizing his permanent license. Dworshak v. Moore, 1998 ND 172, 583 N.W.2d 799, 1998 N.D. LEXIS 173 (N.D. 1998).

DECISIONS UNDER PRIOR LAW

Refusal to Take Test.

Where person was arrested for driving while under the influence of intoxicating liquor, and the arresting officer gave defendant the Miranda Rights and later asked the person if he would submit to a breathalyzer test without informing that person of the consequences of his refusal to take the test, the person’s refusal to take the test was not justified by the arresting officer’s failure to inform of the consequences of a refusal, and the refusal to take the test was a sufficient basis to suspend the person’s driver’s license where the evidence did not establish that the person was confused about his rights when he refused the test. Hammeren v. North Dakota State Hwy. Comm’r, 315 N.W.2d 679 (N.D. 1982), decided prior to the amendment to N.D.C.C. § 39-20-01, by Session Laws 1983, ch. 415.

Collateral References.

Driving while intoxicated: Subsequent consent to sobriety test as affecting initial refusal, 28 A.L.R.5th 459.

Law Reviews.

Criminal Law — Accusatory Stage of Proceedings — Custody Test Requires Miranda Warnings after DWI Arrest, 57 N.D. L. Rev. 541 (1981).

The Admission of Chemical Test Refusals After State v. Neville: Drunk Drivers Cannot Take the Fifth, 59 N.D. L. Rev. 349 (1983).

Former Jeopardy — Multiple Punishments — Prohibition of Multiple Proceedings or Punishments: A Drunk Driver’s Trivial Constitutional Defense, 73 N.D. L. Rev. 755 (1997).

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

39-20-04.1. Administrative sanction for driving or being in physical control of a vehicle while having certain alcohol concentration.

  1. After the receipt of the certified report of a law enforcement officer and if no written request for hearing has been received from the arrested person under section 39-20-05, or if that hearing is requested and the findings, conclusion, and decision from the hearing confirm that the law enforcement officer had reasonable grounds to arrest the person and test results show that the arrested person was driving or in physical control of a vehicle while having an alcohol concentration of at least eight one-hundredths of one percent by weight or, with respect to a person under twenty-one years of age, an alcohol concentration of at least two one-hundredths of one percent by weight at the time of the performance of a test within two hours after driving or being in physical control of a motor vehicle, the director shall suspend the person’s driving privileges as follows:
    1. For ninety-one days if the person’s driving record shows that, within the seven years preceding the date of the arrest, the person has not previously violated section 39-08-01 or equivalent ordinance or the person’s operator’s license has not previously been suspended or revoked under this chapter and the violation was for an alcohol concentration of at least eight one-hundredths of one percent by weight or, with respect to a person under twenty-one years of age, an alcohol concentration of at least two one-hundredths of one percent by weight, and under eighteen one-hundredths of one percent by weight.
    2. For one hundred eighty days if the operator’s record shows the person has not violated section 39-08-01 or equivalent ordinance within the seven years preceding the last violation and the last violation was for an alcohol concentration of at least eighteen one-hundredths of one percent by weight.
    3. For three hundred sixty-five days if the person’s driving record shows that, within the seven years preceding the date of the arrest, the person has once previously violated section 39-08-01 or equivalent ordinance or the person’s operator’s license has once previously been suspended or revoked under this chapter with the last violation or suspension for an alcohol concentration under eighteen one-hundredths of one percent by weight.
    4. For two years if the person’s driving record shows that within the seven years preceding the date of the arrest, the person’s operator’s license has once been suspended, revoked, or issuance denied under this chapter, or for a violation of section 39-08-01 or equivalent ordinance, with the last violation or suspension for an alcohol concentration of at least eighteen one-hundredths of one percent by weight or if the person’s driving record shows that within the seven years preceding the date of arrest, the person’s operator’s license has at least twice previously been suspended, revoked, or issuance denied under this chapter, or for a violation of section 39-08-01 or equivalent ordinance, or any combination thereof, and the suspensions, revocations, or denials resulted from at least two separate arrests with the last violation or suspension for an alcohol concentration of under eighteen one-hundredths of one percent by weight.
    5. For three years if the operator’s record shows that within the seven years preceding the date of the arrest, the person’s operator’s license has at least twice previously been suspended, revoked, or issuance denied under this chapter, or for a violation of section 39-08-01 or equivalent ordinance, or any combination thereof, and the suspensions, revocations, or denials resulted from at least two separate arrests and the last violation or suspension was for an alcohol concentration of at least eighteen one-hundredths of one percent by weight.
  2. In the suspension of the person’s operator’s license the director shall give credit for the time the person was without an operator’s license after the day of the offense, except that the director may not give credit for the time the person retained driving privileges through a temporary operator’s permit issued under section 39-20-03.1 or 39-20-03.2.

Source:

S.L. 1983, ch. 415, § 35; 1985, ch. 429, § 16; 1989, ch. 478, § 4; 1993, ch. 375, § 8; 1993, ch. 387, § 4; 1997, ch. 334, § 5; 2003, ch. 316, § 5; 2003, ch. 321, § 3; 2005, ch. 330, § 7; 2009, ch. 328, § 7; 2013, ch. 301, § 15.

Cross-References.

Prior offenses under § 39-08-01 restricted to those after July 1, 1981, see § 39-08-01.1.

Notes to Decisions

Administrative Agencies Practice Act.

An appeal from a district court judgment involving a license suspension under this section is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Moser v. North Dakota State Highway Comm'r, 369 N.W.2d 650, 1985 N.D. LEXIS 337 (N.D. 1985); Rudolph v. North Dakota DOT Director, 539 N.W.2d 63, 1995 N.D. LEXIS 185 (N.D. 1995).

An appeal from a district court judgment involving a license suspension is governed by the Administrative Agencies Practice Act, and review is limited to an examination of the record compiled before the administrative agency, rather than the findings of the district court. Berger v. State Highway Comm'r, 394 N.W.2d 678, 1986 N.D. LEXIS 423 (N.D. 1986).

Review of the state highway commissioner’s suspension of defendant’s license is governed by the Administrative Agencies Practice Act, and is limited to an examination of the record compiled before the administrative agency rather than the findings of the district court; review of the factual basis of an administrative decision is a determination of whether the hearing officer’s findings are supported by a preponderance of the evidence. Vogel v. Director, N.D. Dep't of Transp., 462 N.W.2d 129, 1990 N.D. LEXIS 218 (N.D. 1990).

Supreme Court reviews the record of the administrative agency as a basis for its decision rather than the district court decision. Rudolph v. North Dakota DOT Director, 539 N.W.2d 63, 1995 N.D. LEXIS 185 (N.D. 1995).

Appeal.

Where defendant contended the department lost jurisdiction to suspend his license because the approved operating procedure was not followed in the administration of the intoxilyzer test, but defendant did not raise this issue at the administrative hearing, the court declined to review it. Lamb v. Moore, 539 N.W.2d 862, 1995 N.D. LEXIS 207 (N.D. 1995).

District court’s ruling was reversed, where it found hearing officer erred in concluding it was reasonable that report required to be forwarded to department of transportation within five days under N.D.C.C. § 39-20-03.1(3) was received timely, though it was issued March 15, and showed a receipt date of March 14. Nelson v. Director, North Dakota DOT, 1997 ND 81, 562 N.W.2d 562, 1997 N.D. LEXIS 75 (N.D. 1997).

Construction.

Suspension of the driver’s operating license for two years was reversed and remanded because N.D.C.C. § 39-20-04.1(1)(d) clearly indicated a two-year suspension was authorized if the prior offense, not the current offense, involved a blood alcohol content of .18 percent or greater; the driver’s blood alcohol content for his current arrest for driving under the influence of alcohol was .19 percent, and the driver’s blood alcohol content from his prior offense was .05 percent. Larsen v. N.D. DOT, 2005 ND 51, 693 N.W.2d 39, 2005 N.D. LEXIS 49 (N.D. 2005).

Double Jeopardy.

Criminal and administrative proceedings for the same conduct do not constitute double jeopardy because the administrative action serves the remedial goal of protecting the public from impaired drivers, and the suspension of the license is not greatly disproportionate to the remedial goal. State v. Zimmerman, 539 N.W.2d 49, 1995 N.D. LEXIS 181 (N.D. 1995).

Administrative proceedings suspending drivers’ licenses are civil in nature, separate and distinct from any criminal proceedings from an arrest for violating N.D.C.C. § 39-08-01, and dismissal or acquittal of a related criminal charge is irrelevant to the administrative proceedings. State v. Zimmerman, 539 N.W.2d 49, 1995 N.D. LEXIS 181 (N.D. 1995).

A lengthy administrative suspension of a driver’s license for repeated drunk driving is remedial, and not punishment that would bar later criminal prosecution because of double jeopardy. State v. Barth, 545 N.W.2d 162, 1996 N.D. LEXIS 66 (N.D. 1996).

Due Process and Procedural Fairness.

Administrative hearing notice sent to a DUI defendant which stated the proposed suspension period was 91 days did not fairly alert the driver that his prior DUI conviction would be considered for purposes of enhancing the proposed suspension period, and thus the district court properly reduced the suspension period from 365 days to 91 days. Morrell v. North Dakota DOT, 1999 ND 140, 598 N.W.2d 111, 1999 N.D. LEXIS 160 (N.D. 1999).

Evidence.
—Admissibility.

Hearing officer did not err in admitting a report and notice form containing the driver’s on-site screening test results into evidence where, because the driver had requested a hearing, the hearing officer was required to confirm that the arrest was supported by probable cause, and the report and notice was admissible to establish probable cause. Grove v. DOT, 2020 ND 146, 945 N.W.2d 257, 2020 N.D. LEXIS 149 (N.D. 2020).

—Intoxilyzer Test.

A reasoning mind reasonably could determine from the preponderance of the evidence that the intoxilyzer test was administered within two hours. Knudson v. Director, North Dakota Dep't of Transp., 530 N.W.2d 313, 1995 N.D. LEXIS 54 (N.D. 1995).

—Sufficient.

Substantial evidence supported the North Dakota Department of Transportation’s decision to suspend a driver’s license for 91 days for driving under the influence because the evidence showed that the driver owned a vehicle found in a ditch, the driver was found at a nearby restaurant, footprints leading away from the driver’s side matched the driver’s boots, the driver had the keys, and the driver admitted leaving a bar within two hours of the administration of an Intoxilyzer test. Dettler v. Sprynczynatyk, 2004 ND 54, 676 N.W.2d 799, 2004 N.D. LEXIS 74 (N.D. 2004).

Suspension of a driver’s license for one year under N.D.C.C. § 39-20-04.1 was proper, as a hearing officer’s finding that the driver was in actual physical control of the driver’s vehicle was supported by a preponderance of the evidence where the driver did not dispute that the driver was intoxicated in the backseat, that the vehicle was running, and that the vehicle was temporarily stuck in a ditch. Vanlishout v. N.D. DOT, 2011 ND 138, 799 N.W.2d 397, 2011 N.D. LEXIS 131 (N.D. 2011).

—Time of Testing.

Suspension of defendant’s license was reinstated, where hearing officer’s finding defendant was validly tested within two hours of the time of driving was supported by her statement to trooper her last drink was at 8:35 p.m. and accident happened a few minutes before trooper arrived at 8:44, and she was tested at 10:16 p.m. Russell v. Moore, 1997 ND 111, 564 N.W.2d 278, 1997 N.D. LEXIS 117 (N.D. 1997).

Hearing officer’s finding that the police officer administered the breath test within two hours of the driver’s driving a vehicle was supported by a preponderance of the evidence; the hearing officer took official notice of daylight savings time under N.D.C.C. § 28-32-24(7) and found that the police officer administered the test within two hours of stopping the driver for a traffic violation. Schock v. N.D. DOT, 2012 ND 77, 815 N.W.2d 255, 2012 N.D. LEXIS 66 (N.D. 2012).

Failure to Forward License.

When a motorist fails a blood alcohol test, while N.D.C.C. § 39-20-03.1 requires the officer to forward the operator’s license to the director of the department of transportation, the failure to do so does not destroy the director’s jurisdiction to suspend a violator’s driving privileges, as a contrary holding would defeat the legislature’s intent to protect the public from potential hazards posed by intoxicated drivers. Schwind v. Director, N.D. Dep't of Transp., 462 N.W.2d 147, 1990 N.D. LEXIS 214 (N.D. 1990).

Interpretation.

Although N.D.C.C. § 39-20-04.1(1)(a) was ambiguous, the provisions for persons under the age of 21 in part 1 of the statute applied to each of the following subsections, even though it was not repeated throughout the statute; any other construction would be ludicrous and absurd, and subpart (a) had to be understood, in the context of minors, to refer to alcohol content of at least .02% and .18% by weight. The statute provided for the suspension of the driver’s license as he was under 21 when he operated a motor vehicle with an alcohol concentration of at least .02% by weight. Harter v. N.D. DOT, 2005 ND 70, 694 N.W.2d 677, 2005 N.D. LEXIS 78 (N.D. 2005).

It was error to reverse the Department of Transportation’s (Department) hearing officer’s decision suspending a driver’s license because a notation in the driver’s driving record kept by the Department was adequate to find the driver’s license was previously suspended within seven years of the driver’s most recent arrest, justifying an enhanced suspension, as the Department’s regularly kept driving records, and specifically notations, only had to be “readily ascertainable” to the Department’s director and designees, and the driver did not rebut the Department’s interpretation of the driver’s driving record. French v. Dir., 2019 ND 172, 930 N.W.2d 84, 2019 N.D. LEXIS 177 (N.D. 2019).

Jurisdiction.

Affirmation of an order suspending the driver’s driving privileges for 180 days was improper because the Department of Transportation failed to transmit a record compiled in the administrative proceedings. Although the hearing officer did not abuse his discretion in setting the hearing date, the Department failed to certify a record on appeal to the district court, and there was no record on appeal establishing the Department’s authority under N.D.C.C. §§ 39-20-03.1 and 39-20-04.1 to suspend the driver’s driving privileges. Baesler v. N.D. DOT, 2012 ND 39, 812 N.W.2d 434, 2012 N.D. LEXIS 31 (N.D. 2012).

Probable Cause.

Officer had probable cause to arrest motorist for being in control of vehicle while intoxicated where motorist was found asleep in parked vehicle with engine running and lights on and officer detected odor of alcohol inside the vehicle, defendant appeared confused, defendant’s eyes were bloodshot, and defendant had difficulty maintaining his balance and had difficulty speaking. Vogel v. Director, N.D. Dep't of Transp., 462 N.W.2d 129, 1990 N.D. LEXIS 218 (N.D. 1990).

Where officer observed defendant commit a moving violation, by crossing the center line, and her observation gave her a valid basis to stop defendant’s vehicle, the validity of the stop was not vitiated merely because the officer subjectively stopped the vehicle for another reason, i.e., another officer told her to, which, in itself, may not have provided an adequate basis for the stop. Zimmerman v. North Dakota Dep't of Transp. Dir, 543 N.W.2d 479, 1996 N.D. LEXIS 40 (N.D. 1996).

Refusal to Take Test.

A driver can cure an initial refusal to submit to a blood alcohol test, notwithstanding the fact that the officer issued a temporary operator’s permit and mailed the report and notice form to the Department of Transportation by the time of the request. Krehlik v. Moore, 542 N.W.2d 443, 1996 N.D. LEXIS 22 (N.D. 1996).

Required Suspension.

Department of Transportation was obligated to suspend driver’s license for 365 days instead of 91 days when the record showed he had been arrested for a similar offense in Arkansas in 1998 and as a result had his North Dakota driving license suspended. Isaak v. Sprynczynatyk, 2002 ND 64, 642 N.W.2d 860, 2002 N.D. LEXIS 73 (N.D. 2002).

Revocation of License Proper.

Revocation of the petitioner’s driving privileges was proper, because the petitioner had a reasonable opportunity to contact an attorney, when the petitioner waited over ten minutes before making a call, and rather than calling an attorney the petitioner called a friend; based on the testimony regarding the petitioner’s continued attempts to change the focus of the investigation, his refusal to follow instructions and his complaints about being uncomfortable in the officer’s patrol vehicle, a reasonable mind could have determined the petitioner was trying to delay the investigation. Bell v. N.D. DOT, 2012 ND 102, 816 N.W.2d 786, 2012 N.D. LEXIS 97 (N.D. 2012).

Time of Driving.

In a driver’s license suspension action under N.D.C.C. § 39-20-04.1(1), a reasoning mind could not reasonably conclude the finding that the driver drove or was in physical control of a motor vehicle within two hours of the performance of a chemical test because the testifying officer did not see the driver driving; the only evidence on the record establishing when he was driving or when the accident occurred was the witnesses’ statements, which were hearsay and not admissible under the present sense exception; and the time of driving indicated on the Report and Notice had no support in the record. Dawson v. N.D. DOT, 2013 ND 62, 830 N.W.2d 221, 2013 N.D. LEXIS 63 (N.D. 2013).

Time of Test.

This section authorizes reliance on test results if the test for alcohol was performed within two hours of either driving or being in physical control. Wolf v. North Dakota Highway Comm'r, 458 N.W.2d 327, 1990 N.D. LEXIS 138 (N.D. 1990).

Where officer testified he noted there was time to perform test within two hours from the time of defendant’s driving, and the Department of Transportation’s Report and Notice Form, a regularly kept record of the department admissible as prima facie evidence of its contents, set the time of defendant’s test within two hours after the time he was driving, a reasoning mind could reasonably have found defendant was tested within two hours of the time he was driving. Maher v. N.D. DOT, 539 N.W.2d 300, 1995 N.D. LEXIS 184 (N.D. 1995).

The two-hour limitation in this section narrows the reasonable period of time within which a person arrested for driving under the influence and refuses to submit to a blood test may change his or her mind and consent to a blood test. Krehlik v. Moore, 542 N.W.2d 443, 1996 N.D. LEXIS 22 (N.D. 1996).

An attempted cure of a refusal to take a blood alcohol test need not be honored if there is only a theoretical possibility a chemical test could be concluded within two hours; rather, the standard is whether the proffered test could reasonably be taken before the expiration of the two hour limit. Houn v. North Dakota DOT, 2000 ND 131, 613 N.W.2d 29, 2000 N.D. LEXIS 139 (N.D. 2000).

Law Reviews.

Former Jeopardy — Multiple Punishments — Prohibition of Multiple Proceedings or Punishments: A Drunk Driver’s Trivial Constitutional Defense, 73 N.D. L. Rev. 755 (1997).

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

39-20-05. Administrative hearing on request — Election to participate in the twenty-four seven sobriety program.

  1. Before issuing an order of suspension, revocation, or denial under section 39-20-04 or 39-20-04.1, the director shall afford that person an opportunity for a hearing if the person mails or communicates by other means authorized by the director a request for the hearing to the director within ten days after the date of issuance of the temporary operator’s permit. Upon completion of the hearing, an individual may elect to participate in the twenty-four seven sobriety program under chapter 54-12. The hearing must be held within thirty days after the date of issuance of the temporary operator’s permit. If no hearing is requested within the time limits in this section, and no affidavit is submitted within the time limits under subsection 2 of section 39-20-04, and if the individual has not provided the director with written notice of election to participate in the twenty-four seven sobriety program under chapter 54-12, the expiration of the temporary operator’s permit serves as the director’s official notification to the person of the revocation, suspension, or denial of driving privileges in this state.
  2. If the issue to be determined by the hearing concerns license suspension for operating a motor vehicle while having an alcohol concentration of at least eight one-hundredths of one percent by weight or, with respect to an individual under twenty-one years of age, an alcohol concentration of at least two one-hundredths of one percent by weight, the hearing must be before a hearing officer assigned by the director and at a time and place designated by the director. The hearing must be recorded and its scope may cover only the issues of whether the arresting officer had reasonable grounds to believe the individual had been driving or was in actual physical control of a vehicle in violation of section 39-08-01 or equivalent ordinance or, with respect to an individual under twenty-one years of age, the individual had been driving or was in actual physical control of a vehicle while having an alcohol concentration of at least two one-hundredths of one percent by weight; whether the individual was placed under arrest, unless the individual was under twenty-one years of age and the alcohol concentration was less than eight one-hundredths of one percent by weight, then arrest is not required and is not an issue under any provision of this chapter; whether the individual was tested in accordance with section 39-20-01 and, if applicable, section 39-20-02; and whether the test results show the individual had an alcohol concentration of at least eight one-hundredths of one percent by weight or, with respect to an individual under twenty-one years of age, an alcohol concentration of at least two one-hundredths of one percent by weight. For purposes of this section, a copy of a certified copy of an analytical report of a blood or urine sample from the director of the state crime laboratory or the director’s designee, or electronically posted by the director of the state crime laboratory or the director’s designee on the crime laboratory information management system and certified by a law enforcement officer or individual who has authorized access to the crime laboratory management system through the criminal justice data information sharing system or a certified copy of the checklist and test records from a certified breath test operator, and a copy of a certified copy of a certificate of the director of the state crime laboratory designating the director’s designees, establish prima facie the alcohol concentration or the presence of drugs, or a combination thereof, shown therein.
  3. If the issue to be determined by the hearing concerns license revocation for refusing to submit to a test under section 39-20-01 or 39-20-14, the hearing must be before a hearing officer assigned by the director at a time and place designated by the director. The hearing must be recorded. The scope of a hearing for refusing to submit to a test under section 39-20-01 may cover only the issues of whether a law enforcement officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle in violation of section 39-08-01 or equivalent ordinance or, with respect to a person under twenty-one years of age, the person had been driving or was in actual physical control of a vehicle while having an alcohol concentration of at least two one-hundredths of one percent by weight; whether the person was placed under arrest; and whether that person refused to submit to the test or tests. The scope of a hearing for refusing to submit to a test under section 39-20-14 may cover only the issues of whether the law enforcement officer had reason to believe the person committed a moving traffic violation or was involved in a traffic accident as a driver, whether in conjunction with the violation or the accident the officer has, through the officer’s observations, formulated an opinion that the person’s body contains alcohol and, whether the person refused to submit to the onsite screening test.
  4. At a hearing under this section, the regularly kept records of the director and state crime laboratory may be introduced. Those records establish prima facie their contents without further foundation. For purposes of this chapter, the following are deemed regularly kept records of the director and state crime laboratory:
    1. Any copy of a certified copy of an analytical report of a blood or urine sample received by the director from the director of the state crime laboratory or the director’s designee or electronically posted by the director of the state crime laboratory or the director’s designee on the crime laboratory information management system and certified by, and received from, a law enforcement officer or an individual who has authorized access to the crime laboratory management system through the criminal justice data information sharing system, or a certified copy of the checklist and test records received by the director from a certified breath test operator;
    2. Any copy of a certified copy of a certificate of the director of the state crime laboratory or the director’s designee relating to approved methods, devices, operators, materials, and checklists used for testing for alcohol concentration or the presence of drugs received by the director from the director of the state crime laboratory or the director’s designee, or that have been electronically posted with the state crime laboratory division of the attorney general at the attorney general website; and
    3. Any copy of a certified copy of a certificate of the director of the state crime laboratory designating the director’s designees.
  5. At the close of the hearing, the hearing officer shall notify the person of the hearing officer’s findings of fact, conclusions of law, and decision based on the findings and conclusions and shall immediately deliver to the person a copy of the decision. If the hearing officer does not find in favor of the person, the copy of the decision serves as the director’s official notification to the person of the revocation, suspension, or denial of driving privileges in this state. If the hearing officer finds, based on a preponderance of the evidence, that the person refused a test under section 39-20-01 or 39-20-14 or that the person had an alcohol concentration of at least eight one-hundredths of one percent by weight or, with respect to a person under twenty-one years of age, an alcohol concentration of at least two one-hundredths of one percent by weight, the hearing officer shall immediately take possession of the person’s temporary operator’s permit issued under this chapter. If the hearing officer does not find against the person, the hearing officer shall sign, date, and mark on the person’s permit an extension of driving privileges for the next twenty days and shall return the permit to the person. The hearing officer shall report the findings, conclusions, and decisions to the director within ten days of the conclusion of the hearing. If the hearing officer has determined in favor of the person, the director shall return the person’s operator’s license by regular mail to the address on file with the director under section 39-06-20.
  6. If the person who requested a hearing under this section fails to appear at the hearing without justification, the right to the hearing is waived, and the hearing officer’s determination on license revocation, suspension, or denial will be based on the written request for hearing, law enforcement officer’s report, and other evidence as may be available. The hearing officer shall, on the date for which the hearing is scheduled, mail to the person, by regular mail, at the address on file with the director under section 39-06-20, or at any other address for the person or the person’s legal representative supplied in the request for hearing, a copy of the decision which serves as the director’s official notification to the person of the revocation, suspension, or denial of driving privileges in this state. Even if the person for whom the hearing is scheduled fails to appear at the hearing, the hearing is deemed to have been held on the date for which it is scheduled for purposes of appeal under section 39-20-06.
  7. A hearing under this section may be conducted in whole or in part by telephone, television, virtual online interface, or other electronic means with the consent of the licensee. A hearing officer may provide a notice, decision, or order under this section by mail or other means as authorized by the director.

Source:

S.L. 1959, ch. 286, § 5; 1961, ch. 270, § 1; 1969, ch. 356, § 3; 1973, ch. 313, § 2; 1981, ch. 385, § 6; 1983, ch. 415, § 27; 1983, ch. 444, § 4; 1985, ch. 429, § 17; 1987, ch. 481, § 4; 1989, ch. 479, § 2; 1991, ch. 429, § 2; 1993, ch. 236, § 7; 1993, ch. 387, § 5; 1993, ch. 389, § 3; 1997, ch. 334, § 6; 1999, ch. 278, § 62; 1999, ch. 340, § 7; 2001, ch. 120, § 1; 2001, ch. 340, § 10; 2003, ch. 316, § 6; 2005, ch. 195, § 19; 2011, ch. 288, § 17; 2013, ch. 301, § 16; 2015, ch. 268, § 11, effective April 15, 2015; 2017, ch. 268, § 7, effective August 1, 2017; 2021, ch. 290, § 3, effective August 1, 2021.

Effective Date.

The 2015 amendment of this section by section 11 of chapter 268, S.L. 2015 became effective April 15, 2015, pursuant to an emergency clause in section 15 of chapter 268, S.L. 2015.

Notes to Decisions

In General.

In an administrative hearing under subsection (2) the hearing officer may draw reasonable inferences from the evidence presented in order to ascertain whether the arresting officer had reasonable grounds to believe that the person driving had been driving a vehicle in violation of N.D.C.C. § 39-08-01. Moreover, there is no jurisdictional requirement under subsection (2) that the hearing officer must determine the person arrested was the “actual driver” without relying on reasonable inferences from the evidence presented. Stanton v. Moore, 1998 ND 213, 587 N.W.2d 148, 1998 N.D. LEXIS 238 (N.D. 1998).

Applicability of Administrative Agencies Practices Act.

Review of a license revocation under this section is governed by the Administrative Agencies Practices Act, N.D.C.C. ch. 28-32. Boyce v. Backes, 488 N.W.2d 45, 1992 N.D. LEXIS 161 (N.D. 1992).

District court erred in applying the ten-day period for notice of a hearing in N.D.C.C. § 28-32-21(1)(d) to the proceeding to suspend the driver’s driving privileges; the notice complied with the requirements of N.D.C.C. ch. 39-20 and was reasonable, and the North Dakota Department of Transportation had the authority to suspend the driver’s driving privileges. Schaaf v. N.D. DOT, 2009 ND 145, 771 N.W.2d 237, 2009 N.D. LEXIS 145 (N.D. 2009).

Constitutional Protections.

Generally, constitutional protections afforded in criminal proceedings are not applicable in administrative license suspension proceedings. Holte v. North Dakota State Highway Comm'r, 436 N.W.2d 250, 1989 N.D. LEXIS 47 (N.D. 1989).

Consultation with Attorney.
—In General.

Evidence of the results of an Intoxilyzer test was allowed in a license suspension proceeding even though the defendant was not allowed to consult an attorney before submitting to the test. Holte v. North Dakota State Highway Comm'r, 436 N.W.2d 250, 1989 N.D. LEXIS 47 (N.D. 1989).

A person who is denied a reasonable opportunity to consult an attorney, and then fails to take a chemical test, does not refuse the test for purposes of revoking a driver’s license. Therefore, in considering whether or not a person has refused to take a blood test, thereby warranting revocation of his driver’s license, the hearing officer must first determine whether the driver has been offered a reasonable opportunity to consult an attorney. Evans v. Backes, 437 N.W.2d 848, 1989 N.D. LEXIS 57 (N.D. 1989).

—Finding.

In a hearing to decide whether to revoke a motorist’s driving privileges due to his refusal to take a blood test, the hearing officer’s failure to draft a finding of fact on the critical issue of whether the motorist was denied a reasonable opportunity to consult an attorney before deciding whether to submit to the blood test warranted remand for preparation of a finding on that issue. Evans v. Backes, 437 N.W.2d 848, 1989 N.D. LEXIS 57 (N.D. 1989).

Delay in Decision.
—No Prejudice.

Defendant was not prejudiced where, after his administrative hearing, the hearing officer advised him and his counsel that he was “going to take the information that I have today back to Bismarck and make a written decision tomorrow on this”, where defendant’s counsel did not object or question the hearing officer, nor did he draw the wording of subsection (5) of this section to the hearing officer’s attention, where the hearing officer assured him that there would be no prejudice to him resulting from the hearing officer’s delay in making a ruling, and where the hearing officer changed the form to allow him to drive. McNamara v. Director of N.D. Dep't of Transp., 500 N.W.2d 585, 1993 N.D. LEXIS 99 (N.D. 1993).

—Time Limit Imperative.

While the legislature did not make the time limit jurisdictional, it clearly intended the time for a hearing to be imperative, and therefore the department is authorized only to take a license of an impaired driver within the time limits provided by this section; although driver’s hearing was commenced within the thirty-day period required, the hearing was not completed within the required time limits and rescheduling was not supported by any “most compelling reason”. Greenwood v. Moore, 545 N.W.2d 790, 1996 N.D. LEXIS 109 (N.D. 1996).

Due Process and Procedural Fairness.

Considering the limited scope of the administrative hearing, the adequacy of judicial review under N.D.C.C. § 39-20-06, and the presence of licensee’s counsel at the hearing, the combination of adjudicative and prosecutorial functions in hearing officer did not violate due process. Pladson v. Hjelle, 368 N.W.2d 508, 1985 N.D. LEXIS 317 (N.D. 1985).

While plaintiff cannot demand equivalent due process followed in courts, he was entitled to procedural fairness in his administrative hearing. Berger v. State Highway Comm'r, 394 N.W.2d 678, 1986 N.D. LEXIS 423 (N.D. 1986).

Where the defendant himself demonstrated that he had the ability to meet the five-day limitation of this section his due process rights were not violated. Powell v. Hjelle, 408 N.W.2d 737, 1987 N.D. LEXIS 357 (N.D. 1987).

Police officers who told a driver some facts about his temporary permit, but failed to make it clear to him that he had only five days in which to request a hearing under this section, did not act improperly or mislead the driver so as to be liable for damages, where the temporary permit clearly indicated the time limit for requesting a hearing and the consequences of failure to make a timely request. Lund v. North Dakota State Highway Dep't, 403 N.W.2d 25, 1987 N.D. LEXIS 276 (N.D. 1987).

A driver’s license is a protectable property interest to which the guarantee of procedural due process applies. Powell v. Hjelle, 408 N.W.2d 737, 1987 N.D. LEXIS 357 (N.D. 1987).

North Dakota Department of Transportation violated plaintiff driver’s right to due process at a license suspension hearing when it took the arresting officer’s testimony telephonically under N.D.C.C. § 28-32-35 without providing notice to plaintiff; the dangers of telephonic testimony were evident, as the hearing officer could not see the police officer to judge his demeanor or determine if he was testifying from notes. The officer was also unable to diagram the roadway where the stop occurred or demonstrate how he conducted the field sobriety test; N.D.C.C. § 39-20-05 demonstrated that the legislature intended for the Department to conduct in-person hearings, and the Department could not unilaterally determine hearings would be conducted telephonically. Wolfer v. N.D. DOT, 2010 ND 59, 780 N.W.2d 645, 2010 N.D. LEXIS 58 (N.D. 2010).

Administrative hearing on the suspension of a driver's license was not improper when the driver's counsel could not personally appear because (1) the hearing was held on the last day N.D.C.C. § 39-20-05(1) allowed, (2) counsel refused to arrange other counsel and instead appeared telephonically before being disconnected, (3) N.D.C.C. § 39-20-05 did not require counsel's in-person representation, and (4) the driver did not show continuing the hearing after counsel was disconnected violated due process. Schlittenhart v. N.D. DOT, 2015 ND 179, 865 N.W.2d 825, 2015 N.D. LEXIS 196 (N.D. 2015).

Evidence at Hearing.
—In General.

Absent a checklist, the test results may not be introduced into evidence without some other showing of fair administration. Salter v. Hjelle, 415 N.W.2d 801, 1987 N.D. LEXIS 438 (N.D. 1987).

The testing officer’s certified written report is a regularly kept record of the commissioner, and as such, its contents are entitled to prima facie effect. Salter v. Hjelle, 415 N.W.2d 801, 1987 N.D. LEXIS 438 (N.D. 1987).

In order for a test record to establish prima facie its resulting blood alcohol concentration, it must be accompanied by a certified copy of the checklist; without a checklist the test records are not prima facie evidence of their results. Salter v. Hjelle, 415 N.W.2d 801, 1987 N.D. LEXIS 438 (N.D. 1987).

The Legislative Assembly’s authorization of both criminal and administrative proceedings upon the arrest of a motorist for driving while under the influence of intoxicating liquor indicates an intention to permit some issues to be litigated twice, thus rendering the doctrine of res judicata inapplicable. Williams v. North Dakota State Highway Comm'r, 417 N.W.2d 359, 1987 N.D. LEXIS 462 (N.D. 1987).

A self-authenticated copy of the checklist and test record received by the department from a “certified breath test operator” can be used as evidence at a hearing held under this section. Frost v. North Dakota Dep't of Transp., 487 N.W.2d 6, 1992 N.D. LEXIS 114 (N.D. 1992).

Defendant’s argument that a blood test should have been excluded from evidence because the nurse used “Acu-Dyne” as a skin disinfectant, and that there was no proof that such a disinfectant was nonalcoholic and nonvolatile as the instruction on the checklist required, was completely meritless where an exhibit in the record was a copy of a certified copy of a memorandum from the state toxicologist’s office stating that “Acu-Dyne” was a nonalcoholic, nonvolatile skin disinfectant and where the memorandum informed emergency room supervisors that “Acu-Dyne” should be used for cleansing skin prior to withdrawing blood from a DUI suspect. McNamara v. Director of N.D. Dep't of Transp., 500 N.W.2d 585, 1993 N.D. LEXIS 99 (N.D. 1993).

N.D.C.C. § 39-20-03.1(3) does not require the officer’s original certified copy of the checklist and test records be admitted at the hearing; the director’s certified copy is sufficient under N.D.C.C. § 39-20-05(4). Rudolph v. North Dakota DOT Director, 539 N.W.2d 63, 1995 N.D. LEXIS 185 (N.D. 1995).

—Admissible.

The checklist and test record are hearsay; however, because they are “regularly kept records of the commissioner” pursuant to subsection (4) of this section, they are subject to admission under the public records and reports exception to the hearsay rule. Frost v. North Dakota Dep't of Transp., 487 N.W.2d 6, 1992 N.D. LEXIS 114 (N.D. 1992).

Under the statute, the evidence supported the finding that the driver did not have anything to eat, drink, or smoke during the twenty minutes before the Intoxilyzer test and the hearing officer’s decision to suspend the driver’s driving privileges was reinstated. Olson v. N.D. DOT, 2013 ND 104, 831 N.W.2d 742, 2013 N.D. LEXIS 98 (N.D. 2013).

Drivers' licenses were properly suspended because, assuming consents to warrantless blood tests were involuntary, the exclusionary rule did not apply to administrative license suspension proceedings, given (1) a legislative purpose to gather reliable evidence of intoxication or nonintoxication, (2) a legislative direction to admit evidence of results of fairly administered chemical tests, (3) prior holdings that an affirmative refusal was necessary to withdraw an implied consent to take a test, (4) the role of such proceedings in protecting the public, and (5) U.S. Supreme Court rulings that the government's use of evidence obtained in violation of the Fourth Amendment did not itself violate the Constitution, since a Fourth Amendment violation was fully accomplished by an illegal search or seizure, and no exclusion of evidence could cure the invasion of a defendant's rights. Beylund v. Levi, 2017 ND 30, 889 N.W.2d 907, 2017 N.D. LEXIS 30 (N.D. 2017).

—Certification of Copy.

Subsection (4) of this section does not designate who must certify the copy of the checklist and test results; it has long been the law in this state that an official record may be proved by the original or by a copy certified by the legal keeper thereof; certification by the custodian of a public record is sufficient. Frost v. North Dakota Dep't of Transp., 487 N.W.2d 6, 1992 N.D. LEXIS 114 (N.D. 1992).

The requirement that the copy be received by the commissioner “from a certified breath test operator” refers to the qualifications of the operator who administers the test; the requirement does not refer to who certifies the copy. This construction harmonizes with the requirements of N.D.C.C. § 39-20-07(5) because the results of the test would not be admissible under that section if the operator was not certified. Frost v. North Dakota Dep't of Transp., 487 N.W.2d 6, 1992 N.D. LEXIS 114 (N.D. 1992).

This rule does not require the certified breath test operator to personally certify and forward a test record. Rather, it only requires the keeper or custodian of the record to certify the correctness of the record, while others may forward the record to the department on behalf of the certified breath test operator. Domres v. Backes, 487 N.W.2d 605, 1992 N.D. LEXIS 163 (N.D. 1992).

—Harmless Error.

Admission of officer’s hearsay testimony was harmless error because the hearsay information to which officer testified was identical to information in the test record which was properly admitted. Domres v. Backes, 487 N.W.2d 605, 1992 N.D. LEXIS 163 (N.D. 1992).

—Inadmissible.

Where the Intoxilyzer record did not establish that the approved method was followed in its entirety, it could not substitute for a checklist, and the commissioner failed to establish that the test was fairly administered; therefore, the hearing officer erred in admitting the Intoxilyzer test results, and there was insufficient remaining evidence to warrant suspension of the defendant’s driving privileges. Salter v. Hjelle, 415 N.W.2d 801, 1987 N.D. LEXIS 438 (N.D. 1987).

—Insufficient.

The testing officer’s certified written report did not address itself to the issue of fair administration, let alone establish it, and did not provide the necessary foundation for a test record without a checklist. Salter v. Hjelle, 415 N.W.2d 801, 1987 N.D. LEXIS 438 (N.D. 1987).

Certified copies of the state toxicologist’s approved method and the lists of certified chemical test operators and approved chemical testing devices are regularly kept records of the commissioner, and thus are prima facie evidence of their contents; however, where their contents did not show that the test was fairly administered or that the test was performed according to approved methods and with approved devices, they did not provide the necessary foundation for test results without a checklist. Salter v. Hjelle, 415 N.W.2d 801, 1987 N.D. LEXIS 438 (N.D. 1987).

—Refusal to Follow Toxicologist’s Methods.

If a person refuses to cooperate with an operator’s attempt to follow the state toxicologist’s approved methods, the person cannot thereafter challenge the foundation for admissibility of the test results on the ground that the approved methods were not followed. Bryl v. Backes, 477 N.W.2d 809, 1991 N.D. LEXIS 197 (N.D. 1991).

—Results of Criminal Proceeding.

A county court order suppressing evidence in a related criminal proceeding upon a conclusion that an officer lacked probable cause to arrest is, like a dismissal or acquittal, irrelevant to the disposition of administrative proceedings; thus, a county court decision in a criminal proceeding on the issue of reasonable grounds or probable cause to arrest is not res judicata in an appeal from an earlier administrative decision. Williams v. North Dakota State Highway Comm'r, 417 N.W.2d 359, 1987 N.D. LEXIS 462 (N.D. 1987).

—Sufficient.

Evidence held sufficient to give arresting officer reasonable grounds to believe that driver had been driving a vehicle in violation of N.D.C.C. § 39-08-01. Moser v. North Dakota State Highway Comm'r, 369 N.W.2d 650, 1985 N.D. LEXIS 337 (N.D. 1985).

Where defendant had an odor of alcohol on his breath, had bloodshot eyes, stated that he had been drinking, and registered a “fail” on an Alco-Sensor test performed in accordance with the state toxicologist’s approved method, those facts were sufficient to warrant a person of reasonable caution in believing that an offense had been or was being committed, and officer had reasonable grounds to believe that plaintiff had been driving a vehicle in violation of N.D.C.C. § 39-08-01. Nichols v. Backes, 461 N.W.2d 113, 1990 N.D. LEXIS 199 (N.D. 1990).

Hearing officer’s decision suspending appellee’s driving privileges for ninety-one days for DUI was reinstated, because the Intoxilyzer test was fairly administered in accordance with the approved method based on the weight of the evidence on the entire record. The Intoxilyzer Test Record and Checklist was received into evidence to show proof of fair administration under N.D.C.C. § 39-20-05(4). Mees v. N.D. DOT, 2013 ND 36, 827 N.W.2d 345, 2013 N.D. LEXIS 36 (N.D. 2013).

District court properly affirmed an administrative hearing officer’s decision to suspend defendant’s driving privileges for 180 days for driving under the influence of alcohol because an Intoxilyzer test record and checklist were the necessary and sufficient means to render test results admissible without further foundation, the documentary evidence and the officer’s testimony showed scrupulous compliance with the methods approved by the State Toxicologist, the officer ascertained the 20-minute waiting period, and defendant failed to rebut by presenting evidence that anything was in his mouth during the waiting period. Ebach v. N.D. DOT, 2019 ND 80, 924 N.W.2d 105, 2019 N.D. LEXIS 71 (N.D. 2019).

Extension of Hearing.

Hearing officer may extend the hearing from within twenty five to within thirty days of issuance of the temporary operator’s permit based upon scheduling difficulties. Dworshak v. Moore, 1998 ND 172, 583 N.W.2d 799, 1998 N.D. LEXIS 173 (N.D. 1998).

Hearing Must be Requested.

Because the duty to provide a hearing does not arise until a hearing has been timely requested, the petitioner’s failure to timely request a hearing waived his right to one and a writ of mandamus compelling a hearing should not have been issued. Burley v. North Dakota DOT, 1999 ND 232, 603 N.W.2d 490, 1999 N.D. LEXIS 259 (N.D. 1999).

Immunity of Hearing Officer.

Individual acting as administrative hearing officer in making and certifying hearing record relative to proposed suspension of driving privileges of a person arrested for driving under the influence, who allegedly erred in including documents in the record when they were not formally offered into evidence at the hearing, was engaged in a discretionary quasi-judicial function entitled to immunity. Loran v. Iszler, 373 N.W.2d 870, 1985 N.D. LEXIS 389 (N.D. 1985).

Jurisdiction.

Defendant, by telling the deputy she was driving and thereby providing the deputy with the initial facts upon which the deputy and DOT relied in seeking the license revocation, was estopped from challenging those facts at administrative hearing for purpose of attacking the department’s jurisdiction to proceed in this case. Kraft v. Moore, 517 N.W.2d 643, 1994 N.D. LEXIS 120 (N.D. 1994).

Nature of Proceeding.

The administrative hearing under this section is civil in nature, not criminal. Asbridge v. North Dakota State Highway Comm'r, 291 N.W.2d 739, 1980 N.D. LEXIS 235 (N.D. 1980).

Proceedings pursuant to the implied consent statute are civil in nature and are separate and distinct from criminal proceedings which may arise from the arrest of a D.U.I. defendant. Pladson v. Hjelle, 368 N.W.2d 508, 1985 N.D. LEXIS 317 (N.D. 1985).

The rights that a licensee may assert in a criminal proceeding are not applicable in implied-consent hearings under this chapter. Pladson v. Hjelle, 368 N.W.2d 508, 1985 N.D. LEXIS 317 (N.D. 1985).

A license suspension proceeding under this section is an exercise of the police power for the protection of the public, civil in nature, separate and distinct from the criminal proceedings which may ensue from an arrest, and a dismissal or acquittal of a related criminal charge is irrelevant to the disposition of the administrative proceedings. Williams v. North Dakota State Highway Comm'r, 417 N.W.2d 359, 1987 N.D. LEXIS 462 (N.D. 1987).

Physical Control.

License was properly revoked because the evidence supported a hearing officer's determination that there were reasonable grounds to believe that a driver was in actual physical control of his vehicle while under the influence of an intoxicating liquor; a revocation based on a blood test refusal under these circumstances did not turn on proving actual physical control. The driver was found alone in his vehicle in a public place, he smelled of alcohol and had slurred speech, he had glassy eyes, he was surrounded by alcoholic beverage containers, and he admitted to drinking. Deeth v. Dir., 2014 ND 232, 857 N.W.2d 86, 2014 N.D. LEXIS 232 (N.D. 2014).

Reasonable Grounds.
—In General.

The term “reasonable grounds” is synonymous with the term “probable cause”. Moser v. North Dakota State Highway Comm'r, 369 N.W.2d 650, 1985 N.D. LEXIS 337 (N.D. 1985); Zietz v. Hjelle, 395 N.W.2d 572, 1986 N.D. LEXIS 430 (N.D. 1986).

In a case involving a license suspension based on a driving under the influence (DUI) case, there was no violation of a licensee’s rights under the Fourth Amendment or N.D. Const. Art. I, § 8; regardless of whether an officer’s initial encounter with the licensee in his front yard constituted a seizure, the officer had a reasonable and articulable suspicion to stop the licensee to investigate a citizen’s complaint regarding erratic driving based partially on the specific description of the car and the fact that the citizen followed the car and waited until police arrived. Further, the officer had probable cause to arrest the licensee for DUI where the licensee failed sobriety tests, had bloodshot and glassy eyes, and admitted to drinking. Sayler v. N.D. DOT, 2007 ND 165, 740 N.W.2d 94, 2007 N.D. LEXIS 158 (N.D. 2007).

Suspension of the licensee’s driving privileges for 180 days for DUI was appropriate under N.D.C.C. § 39-20-05(2) because the officer had probable cause to arrest since witnesses described the vehicle involved in the accident; it was registered to the licensee; and the officer found the licensee extremely intoxicated. Because the officer had probable cause to arrest the licensee and had a right to remain at his elbow at all times, the officer did not violate the licensee’s Fourth Amendment rights by following him into his bedroom without a warrant. Hoover v. Dir., N.D. DOT, 2008 ND 87, 748 N.W.2d 730, 2008 N.D. LEXIS 95 (N.D. 2008).

Report and notice sufficiently stated reasonable grounds for an officer to believe a driver drove under the influence of alcohol, for purposes of suspending the driver’s driving privilege, because the report indicated (1) there was an odor of alcohol, (2) the driver exceeded the speed limit, and (3) the driver refused onsite testing. Sutton v. N.D. DOT, 2019 ND 132, 927 N.W.2d 93, 2019 N.D. LEXIS 135 (N.D. 2019).

Refusal to Take Test.
—In General.

Motorist’s alleged confusion regarding rights growing out of Miranda warnings did not preclude revocation of his driver’s license on theory that his refusal to take blood-alcohol test was not knowingly made. Agnew v. Hjelle, 216 N.W.2d 291, 1974 N.D. LEXIS 238 (N.D. 1974).

Cancellation of license revocation hearing based on refusal to submit to chemical test did not operate as res judicata barring subsequent DUI license suspension proceedings. Fuchs v. Moore, 1999 ND 27, 589 N.W.2d 902, 1999 N.D. LEXIS 29 (N.D. 1999).

Finding that petitioner refused a blood test after petitioner was arrested for driving while intoxicated was supported by a preponderance of the evidence where each time the officer read the implied consent to petitioner, the response was the same: petitioner swore at the officer and grumbled but would not submit. Hence, an order revoking petitioner’s driver’s license for three years was upheld. Grosgebauer v. N.D. DOT, 2008 ND 75, 747 N.W.2d 510, 2008 N.D. LEXIS 76 (N.D. 2008).

Department of Transportation properly revoked a driver's driving privilege for refusal to submit to an onsite screening test of his breath because a law enforcement officer had a reasonable suspicion he was driving while impaired; the officer observed the driver's vehicle speeding and initiated a traffic stop, the driver had bloodshot watery eyes, and he admitted he had a couple of beers. Barrios-Flores v. Levi, 2017 ND 117, 894 N.W.2d 888, 2017 N.D. LEXIS 128 (N.D. 2017).

—Second Test.

Refusal to submit to a reasonable request for a second intoxilyzer breath test also warrants license suspension. Geiger v. Hjelle, 396 N.W.2d 302, 1986 N.D. LEXIS 438 (N.D. 1986).

Review by Supreme Court.

Judgment of the district court affirming order of revocation issued under N.D.C.C. § 39-20-04 is reviewable by the supreme court under the provisions of Administrative Agencies Practices Act. Agnew v. Hjelle, 216 N.W.2d 291, 1974 N.D. LEXIS 238 (N.D. 1974).

As the Administrative Agencies Practice Act governs an appeal from a district court judgment involving a license suspension under this section, the supreme court looks to the record of the administrative agency rather than the findings of the district court. Schwind v. Director, N.D. Dep't of Transp., 462 N.W.2d 147, 1990 N.D. LEXIS 214 (N.D. 1990).

The supreme court reviews the agency’s decision, not the ruling of the district court. The supreme court does not make independent findings or substitute its judgment for that of the agency. Rather, the supreme court considers whether the agency reasonably reached its factual determinations from the greater weight of all the evidence. Boyce v. Backes, 488 N.W.2d 45, 1992 N.D. LEXIS 161 (N.D. 1992).

The supreme court’s review of a district court decision on a license suspension under this section is governed by the Administrative Agencies Practice Act. The court reviews the record of the administrative agency, not the district court’s ruling. North Dakota Dep't of Transp. v. DuPaul, 487 N.W.2d 593, 1992 N.D. LEXIS 117 (N.D. 1992).

The court does not make independent findings or substitute its judgment for that of the agency. Rather, the court considers whether the agency reasonably reached its factual determinations by the greater weight of all the evidence. North Dakota Dep't of Transp. v. DuPaul, 487 N.W.2d 593, 1992 N.D. LEXIS 117 (N.D. 1992).

When reviewing a driver’s license suspension hearing under this section the supreme court reviews the decision of the agency and not the district court. Broeckel v. Moore, 498 N.W.2d 170, 1993 N.D. LEXIS 47 (N.D. 1993).

Right to Counsel.

If an arrested person asks to consult with an attorney before deciding to take a chemical test, he must be given a reasonable opportunity to do so if it does not materially interfere with the administration of the test, and if he is not given a reasonable opportunity to do so under the circumstances, his failure to take the test is not a refusal upon which to revoke his license. Kuntz v. State Highway Comm'r, 405 N.W.2d 285, 1987 N.D. LEXIS 311 (N.D. 1987), limited, Jesser v. N.D. DOT, 2019 ND 287, 936 N.W.2d 102, 2019 N.D. LEXIS 295 (N.D. 2019).

Scope of Hearing.

The scope of an administrative hearing on a refusal to submit to testing is limited by this section. Pursuant to the statute, the hearing may cover only three issues: (1) whether the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle in violation of section 39-08-01, or equivalent ordinance; (2) whether the person was placed under arrest; and (3) whether the person refused to submit to the test or tests. Throlson v. Backes, 466 N.W.2d 124, 1991 N.D. LEXIS 13 (N.D. 1991).

Suspension of driving privileges was proper, because N.D.C.C. § 39-20-05(3) by its terms specifically excluded from consideration at the administrative hearing whether the driver was informed of the consequences of refusal, and a reasoning mind could reasonably conclude that despite the driver’s verbal acquiescence to the chemical testing, the context in which the words were stated, his subsequent threats, and his refusal to cooperate with officers belied any intent to take the test and amounted to a refusal to do so. Gardner v. N.D. DOT, 2012 ND 223, 822 N.W.2d 55, 2012 N.D. LEXIS 227 (N.D. 2012).

Test Method.

The operating procedure on the back side of an Alco-Sensor device is merely an additional approved method that warrants consideration of Alco-Sensor test results. Thus, the operating procedure on the back side of an Alco-Sensor device is irrelevant in a case in which the law enforcement officer’s testimony shows that in administering an Alco-Sensor test, he followed the approved method prescribed by the state toxicologist. Nichols v. Backes, 461 N.W.2d 113, 1990 N.D. LEXIS 199 (N.D. 1990).

Where officer’s testimony established that he performed the Alco-Sensor test according to the method approved by the state toxicologist, the hearing officer did not err in considering the results of the Alco-Sensor test in determining whether the officer had reasonable grounds to believe that defendant had been driving a vehicle in violation of N.D.C.C. § 39-08-01. Nichols v. Backes, 461 N.W.2d 113, 1990 N.D. LEXIS 199 (N.D. 1990).

Where officer testified he noted there was time to perform test within two hours from the time of defendant’s driving, and the Department of Transportation’s Report and Notice Form, a regularly kept record of the department admissible as prima facie evidence of its contents, set the time of defendant’s test within two hours after the time he was driving, a reasoning mind could reasonably have found defendant was tested within two hours of the time he was driving. Maher v. N.D. DOT, 539 N.W.2d 300, 1995 N.D. LEXIS 184 (N.D. 1995).

Defendant failed to establish any margin of error in the breath analyzer test result where not only did he fail to present any margin of error expert testimony, he failed to present expert testimony that his test result should have been adjusted downward rather than upward, and his attorney's attempted interpretation of the scientific documents did not establish the margin of error. Gillmore v. Levi, 2016 ND 77, 877 N.W.2d 801, 2016 N.D. LEXIS 75 (N.D. 2016).

Testing Officers.

The supreme court has applied a presumption of regularity to official acts of the state toxicologist, but has never applied this presumption to testing officers. To do so would effectively eliminate the requirement that the commissioner prove fair administration. Salter v. Hjelle, 415 N.W.2d 801, 1987 N.D. LEXIS 438 (N.D. 1987).

Timeliness of Hearing.

The twenty five day period within which the license suspension hearing must be held begins running from the date the temporary operator’s license is issued, not the date of the DUI arrest. Dworshak v. Moore, 1998 ND 172, 583 N.W.2d 799, 1998 N.D. LEXIS 173 (N.D. 1998).

Timeliness of Request.

The five-day period in which to request a hearing is to be computed in accordance with N.D.C.C. § 1-02-15, and not Buzick v. North Dakota State Highway Comm'r, 351 N.W.2d 438, 1984 N.D. LEXIS 346 (N.D. 1984).

The highway commissioner has a clear legal duty to grant a hearing on license suspension for driving under the influence of alcohol under the provisions of N.D.C.C. § 32-34-01, and a writ of mandamus may be properly issued to compel such action in accordance with N.D.C.C. § 39-20-05, but the duty is contingent on the action taken by the driver; before the commissioner’s duty to order a hearing arises, the driver must have timely requested a hearing. Lund v. North Dakota State Highway Dep't, 403 N.W.2d 25, 1987 N.D. LEXIS 276 (N.D. 1987).

The five-day notice requirement under this section is not unreasonable; all that this section requires is that a written request for a hearing be sent to the highway commissioner within five days of the date of the issuance of the temporary operator’s permit, and while a longer period or express ameliorating provisions for untimely filings would provide greater access, the five-day limit does not deprive parties of a meaningful opportunity for a hearing. Powell v. Hjelle, 408 N.W.2d 737, 1987 N.D. LEXIS 357 (N.D. 1987).

Driver’s license was not suspended according to law because, when the driver did not timely request an administrative hearing, it was error for a hearing officer to conclude the Department of Transportation had no jurisdiction, as the issue was whether that jurisdiction was properly invoked, which it was not, so the license could only be administratively revoked, and it was error to conduct a hearing. Reineke v. NDDOT Dir., 2020 ND 10, 937 N.W.2d 517, 2020 N.D. LEXIS 9 (N.D. 2020).

Transmission of Test Results.

Under subsection (4) of this section and N.D.C.C. § 39-20-03.1(3), the certified breath test operator does not have to be the person who personally forwards or transmits the checklist and test results to the department. Frost v. North Dakota Dep't of Transp., 487 N.W.2d 6, 1992 N.D. LEXIS 114 (N.D. 1992).

Mailing of the hearing officer’s decision to the driver three days after the administrative hearing did not deprive the North Dakota Department of Transportation of authority to suspend the driver’s driving privileges, because the statutory provision requiring the decision to be “immediately delivered” was not basic and mandatory, and the hearing officer’s action did not prejudice the driver. Schock v. N.D. DOT, 2012 ND 77, 815 N.W.2d 255, 2012 N.D. LEXIS 66 (N.D. 2012).

Type of Hearing.

North Dakota Department of Transportation failed to conduct administrative hearings in which it suspended the drivers privileges of driving for alcohol-related offenses in accordance with the law because under N.D.C.C. § 39-20-05 hearings were intended to be conducted in person, not telephonically and neither driver waived his right to an in-person hearing. Landsiedel v. Dir., N.D. DOT, 2009 ND 196, 774 N.W.2d 645, 2009 N.D. LEXIS 196 (N.D. 2009).

DECISIONS UNDER PRIOR LAW

Refusal to Take Test.

When person was arrested for driving while under the influence of intoxicating liquor, and the arresting officer gave the person his Miranda Rights and later asked him to submit to a breathalyzer test without informing him of the consequences of his refusal to take the test, the person’s refusal to take the test was not justified by the officer’s failure to inform him of the consequences of a refusal, and the person’s driver’s license was properly suspended where the evidence did not establish that his refusal was due to confusion created by the giving of the Miranda Rights; supreme court refused to adopt a rule that under such circumstances, confusion is established as a matter of law. Hammeren v. North Dakota State Highway Comm'r, 315 N.W.2d 679, 1982 N.D. LEXIS 229 (N.D. 1982), decided prior to the amendment to section 39-02-01, by Session Laws 1983, ch. 415.

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

39-20-06. Judicial review.

Any person whose operator’s license or privilege has been suspended, revoked, or denied by the decision of the hearing officer under section 39-20-05 may appeal within seven days after the date of the hearing under section 39-20-05 as shown by the date of the hearing officer’s decision, section 28-32-42 notwithstanding, by serving on the director and filing a notice of appeal and specifications of error in the district court in the county where the events occurred for which the demand for a test was made, or in the county in which the administrative hearing was held. The court shall set the matter for hearing, and the petitioner shall give twenty days’ notice of the hearing to the director and to the hearing officer who rendered the decision. Neither the director nor the court may stay the decision pending decision on appeal. Within twenty days after receipt of the notice of appeal, the director or the hearing officer who rendered the decision shall file in the office of the clerk of court to which the appeal is taken a certified transcript of the testimony and all other proceedings. It is the record on which the appeal must be determined. No additional evidence may be heard. The court shall affirm the decision of the director or hearing officer unless it finds the evidence insufficient to warrant the conclusion reached by the director or hearing officer. The court may direct that the matter be returned to the director or hearing officer for rehearing and the presentation of additional evidence.

Source:

S.L. 1959, ch. 286, § 6; 1961, ch. 270, § 2; 1973, ch. 313, § 3; 1983, ch. 415, § 28; 1985, ch. 429, § 18; 1987, ch. 460, § 14; 1993, ch. 394, § 1; 2001, ch. 293, § 18.

Notes to Decisions

Administrative Agencies Practice Act.

Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, is applicable to appeals of district court’s judgment involving an order issued by state highway commissioner under sections 39-20-04 and 39-20-04.1 suspending, revoking, or denying a driver’s license; therefore, on appeal to supreme court from district court’s judgment, supreme court reviews evidence by looking at record compiled before administrative agency and not to findings of district court. Dodds v. North Dakota State Highway Comm'r, 354 N.W.2d 165, 1984 N.D. LEXIS 365 (N.D. 1984).

An appeal from a district court judgment involving a license suspension under N.D.C.C. ch. 39-20 is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, and the supreme court’s review is limited to an examination of the record compiled before the administrative agency rather than the findings of the district court. Keepseagle v. Backes, 454 N.W.2d 312, 1990 N.D. LEXIS 92 (N.D. 1990).

Appeal.

Where the period of suspension ordered by commissioner had expired prior to an order by district court restoring a driver’s license, appeal of such order by commissioner was dismissed as moot. Kirchmeier v. Hjelle, 129 N.W.2d 373, 1964 N.D. LEXIS 114 (N.D. 1964).

Letters containing a motorist’s request for “first of all a reopening of the administrative hearing…as a second choice an appeal to the District Court or whatever” did not constitute a request for an appeal when the hearing officer concluded that the motorist wanted a reconsideration of his license suspension under N.D.C.C. § 28-32-40(1); the hearing officer sent the motorist directions to participate in reconsideration and the motorist pursued reconsideration using those directions. DuPaul v. N.D. DOT, 2003 ND 201, 672 N.W.2d 680, 2003 N.D. LEXIS 224 (N.D. 2003).

District court lacked jurisdiction to hear appellant's untimely appeals from the North Dakota Department of Transportation's decisions revoking appellant's driving privileges for 180 days and reciprocally disqualifying him from operating a commercial motor vehicle for one year. Although appellant served the Department with a notice of appeal within seven days after each decision, appellant did not file his notice of appeal with the district court for either decision within seven days, and his appeals were untimely. Opp v. Dir., N.D. DOT, 2017 ND 101, 892 N.W.2d 891, 2017 N.D. LEXIS 113 (N.D. 2017).

Error by Hearing Officer.

Where the administering officer deviated from the state toxicologist’s approved method to conduct a breath test with an intoxilyzer and there was no expert testimony on the effect, if any, of the deviation on the accuracy and reliability of the intoxilyzer test result, the hearing officer should not have admitted the intoxilyzer test result into evidence. Price v. North Dakota Dep't of Transp. Director, 469 N.W.2d 560, 1991 N.D. LEXIS 89 (N.D. 1991).

Findings.

Conclusion that an intoxilyzer test was fairly administered must be supported by adequate factual findings, not assumptions. Schirado v. North Dakota State Highway Comm'r, 382 N.W.2d 391, 1986 N.D. LEXIS 264 (N.D. 1986).

In deciding whether the findings of fact made by an administrative agency are supported by a preponderance of the evidence, the supreme court determines only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record, not whether the hearing officer was right in his factual determinations and inferences. Lorenzen v. State Highway Comm'r, 401 N.W.2d 526, 1987 N.D. LEXIS 259 (N.D. 1987).

Immunity of Hearing Officer.

Individual acting as administrative hearing officer in making and certifying hearing record relative to proposed suspension of driving privileges of a person arrested for driving under the influence, who allegedly erred in including documents in the record when they were not formally offered into evidence at the hearing, was engaged in a discretionary quasi-judicial function entitled to immunity. Loran v. Iszler, 373 N.W.2d 870, 1985 N.D. LEXIS 389 (N.D. 1985).

Reasonable Cause.

Where evidence (described in opinion) supported decision of commissioner and of district court that patrolman had reasonable cause to believe that, at time of arrest, person was driving motor vehicle while under the influence of intoxicating liquor, revocation of driver’s license must be affirmed. Borman v. Tschida, 171 N.W.2d 757, 1969 N.D. LEXIS 77 (N.D. 1969).

A county court order suppressing evidence in a related criminal proceeding upon a conclusion that an officer lacked probable cause to arrest is, like a dismissal or acquittal, irrelevant to the disposition of administrative proceedings; thus, a county court decision in a criminal proceeding on the issue of reasonable grounds or probable cause to arrest is not res judicata in an appeal from an earlier administrative decision. Williams v. North Dakota State Highway Comm'r, 417 N.W.2d 359, 1987 N.D. LEXIS 462 (N.D. 1987).

Specificity Requirement.

Appellate court declined to review whether or not a driver was illegally seized when an officer confronted the driver in a restaurant in relation to a vehicle in a nearby ditch because the specifications of error were not particular enough; the allegation that the decision to suspend the driver’s license for 91 days was not in accordance with the law and was in violation of the driver’s constitutional and statutory rights was merely boilerplate because it could have applied to all kinds of different arguments. Dettler v. Sprynczynatyk, 2004 ND 54, 676 N.W.2d 799, 2004 N.D. LEXIS 74 (N.D. 2004).

In a case involving the suspension of an operator's driving privileges, it was not necessary to determine whether a specifications of error could have been amended to include two alleged errors because the operator's filing was untimely. Rounkles v. Levi, 2015 ND 128, 863 N.W.2d 910, 2015 N.D. LEXIS 117 (N.D. 2015), cert. denied, — U.S. —, 136 S. Ct. 2539, 195 L. Ed. 2d 868, 2016 U.S. LEXIS 4285 (U.S. 2016).

District court erred in reversing an administrative hearing officer’s decision to admit an exhibit containing breath test results based on an incomplete implied consent advisory where the driver neither objected to the officer’s failure to read the “or urine” portion of the implied advisory nor identified the issue in his specification of errors. Ouradnik v. Henke, 2020 ND 39, 938 N.W.2d 392, 2020 N.D. LEXIS 40 (N.D. 2020).

Whether an exhibit containing the breath test results lacked proper authentication was preserved as the driver had made the argument below and included the issue within his specification of errors. Ouradnik v. Henke, 2020 ND 39, 938 N.W.2d 392, 2020 N.D. LEXIS 40 (N.D. 2020).

Specification of error was insufficient to preserve the issue of a substantive omission from the statutory implied consent advisory for review where it did not state what added or omitted language or substantive change caused the advisory to be deficient, but was simply boilerplate. Grove v. DOT, 2020 ND 146, 945 N.W.2d 257, 2020 N.D. LEXIS 149 (N.D. 2020).

Transcript.

Failure to furnish a complete administrative hearing transcript usually results in a remand until the transcript can be provided, not a dismissal of the action. Rudolph v. North Dakota DOT Director, 539 N.W.2d 63, 1995 N.D. LEXIS 185 (N.D. 1995).

Case law did not require automatic summary dismissal of a decision suspending a driver’s license when the North Dakota Department of Transportation failed to file a transcript within the 20-day period pursuant to N.D.C.C. § 39-20-06 as the filing period was not jurisdictional; because the driver failed to allege or prove prejudice caused by the two-day delay in filing the transcript, the department’s failure to file the transcript within 20 days did not mandate reversal of the decision suspending the driver’s license. May v. Sprynczynatyk, 2005 ND 76, 695 N.W.2d 196, 2005 N.D. LEXIS 84 (N.D. 2005).

It is the North Dakota Department of Transportation’s actual receipt of a notice of appeal which commences the 20-day period, rather than some other event such as service or filing the notice of appeal. Therefore, the filing of a transcript shortly after receiving a facsimile of a notice of appeal was timely since the date of filing the appeal was not dispositive. Sayler v. N.D. DOT, 2007 ND 165, 740 N.W.2d 94, 2007 N.D. LEXIS 158 (N.D. 2007).

Affirmation of an order suspending the driver’s driving privileges for 180 days was improper because the Department of Transportation failed to transmit a record compiled in the administrative proceedings. Although the hearing officer did not abuse his discretion in setting the hearing date, the Department failed to certify a record on appeal to the district court, and there was no record on appeal establishing the Department’s authority to suspend the driver’s driving privileges. Baesler v. N.D. DOT, 2012 ND 39, 812 N.W.2d 434, 2012 N.D. LEXIS 31 (N.D. 2012).

In a case involving the suspension of driving privileges, a district court erred by summarily reversing a hearing officer's decision due to the North Dakota Department of Transportation's failure to file a transcript within the statutory time frame because there was no prejudice or systematic disregard of the law. This was only the second instance since 2005 when the record of an administrative hearing was kept and the Department failed to timely submit the transcript; moreover, the transcript was filed with the district court prior to the review date and prior to the matter being noticed for a hearing. Bayles v. N.D. DOT, 2015 ND 298, 872 N.W.2d 626, 2015 N.D. LEXIS 315 (N.D. 2015).

Law Reviews.

North Dakota Supreme Court Review (State v. Hahne, 2007 ND 116, 736 N.W.2d 483 (2007)) , see 84 N.D. L. Rev. 567 (2008).

39-20-07. Interpretation of chemical tests.

Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any individual while driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor, drugs, or a combination thereof, evidence of the amount of alcohol concentration or presence of other drugs, or a combination thereof, in the individual’s blood, breath, or urine at the time of the act alleged as shown by a chemical analysis of the blood, breath, or urine is admissible. For the purpose of this section:

  1. An individual having, at that time, an alcohol concentration of not more than five one-hundredths of one percent by weight is presumed not to be under the influence of intoxicating liquor. This presumption has no application to the administration of chapter 39-06.2.
  2. Evidence that there was at that time more than five one-hundredths of one percent by weight alcohol concentration in an individual is relevant evidence, but it is not to be given prima facie effect in indicating whether the individual was under the influence of intoxicating liquor.
  3. An individual having an alcohol concentration of at least eight one-hundredths of one percent by weight or, with respect to an individual under twenty-one years of age, an alcohol concentration of at least two one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after driving or being in physical control of a vehicle is under the influence of intoxicating liquor at the time of driving or being in physical control of a vehicle.
  4. Alcohol concentration is based upon grams of alcohol per one hundred milliliters of blood or grams of alcohol per two hundred ten liters of end expiratory breath or grams of alcohol per sixty-seven milliliters of urine.
  5. The results of the chemical analysis must be received in evidence when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the director of the state crime laboratory or the director’s designee, and by an individual possessing a certificate of qualification to administer the test issued by the director of the state crime laboratory or the director’s designee. The director of the state crime laboratory or the director’s designee is authorized to approve satisfactory devices and methods of chemical analysis and determine the qualifications of individuals to conduct such analysis, and shall issue a certificate to all qualified operators who exhibit the certificate upon demand of the individual requested to take the chemical test.
  6. The director of the state crime laboratory or the director’s designee may appoint, train, certify, and supervise field inspectors of breath testing equipment and its operation, and the inspectors shall report the findings of any inspection to the director of the state crime laboratory or the director’s designee for appropriate action. Upon approval of the methods or devices, or both, required to perform the tests and the individuals qualified to administer them, the director of the state crime laboratory or the director’s designee shall prepare, certify, and electronically post a written record of the approval with the state crime laboratory division of the attorney general at the attorney general website, and shall include in the record:
    1. An annual register of the specific testing devices currently approved, including serial number, location, and the date and results of last inspection.
    2. An annual register of currently qualified and certified operators of the devices, stating the date of certification and its expiration.
    3. The operational checklist and forms prescribing the methods currently approved by the director of the state crime laboratory or the director’s designee in using the devices during the administration of the tests.
    4. The certificate of the director of the state crime laboratory designating the director’s designees.
    5. The certified records electronically posted under this section may be supplemented when the director of the state crime laboratory or the director’s designee determines it to be necessary, and any certified supplemental records have the same force and effect as the records that are supplemented.
    6. The state crime laboratory shall make the certified records required by this section available for download in a printable format on the attorney general website.
  7. Copies of the state crime laboratory certified records referred to in subsections 5 and 6 that have been electronically posted with the state crime laboratory division of the attorney general at the attorney general website must be admitted as prima facie evidence of the matters stated in the records.
  8. A certified copy of the analytical report of a blood or urine analysis referred to in subsection 5 and which is issued by the director of the state crime laboratory or the director’s designee must be accepted as prima facie evidence of the results of a chemical analysis performed under this chapter. The certified copy satisfies the directives of subsection 5.
  9. Superseded by N.D.R.Ev., Rule 707.
  10. A law enforcement officer who has witnessed an individual who is medically qualified to draw the blood sample for testing may sign a verified statement that the law enforcement officer witnessed the individual draw the blood sample and the individual followed the approved methods of the state toxicologist. Further foundation is not required to establish that the blood sample was drawn according to the approved method of the state toxicologist.

Source:

S.L. 1959, ch. 286, § 7; 1961, ch. 269, § 3; 1965, ch. 281, § 1; 1969, ch. 357, § 1; 1969, ch. 358, § 1; 1975, ch. 359, § 1; 1983, ch. 415, § 29; 1983, ch. 444, § 5; 1985, ch. 429, § 19; 1989, ch. 461, § 5; 1993, ch. 236, § 8; 1993, ch. 383, § 14; 1993, ch. 387, § 6; 1997, ch. 334, § 7; 1997, ch. 345, § 1; 1997, ch. 346, § 1; 1999, ch. 278, § 63; 1999, ch. 358, § 8; 2001, ch. 120, § 1; 2003, ch. 316, § 7; 2003, ch. 469, § 11; 2005, ch. 195, § 20; 2007, ch. 339, § 3; 2007, ch. 325, § 5; 2011, ch. 288, § 18; 2013, ch. 301, §§ 17–19.

Notes to Decisions

Constitutionality.

Admission of results of properly administered chemical test into evidence, which test was performed on defendant to determine the alcoholic content of his blood immediately after arrest, did not violate defendant’s right against self-incrimination. State v. Miller, 146 N.W.2d 159, 1966 N.D. LEXIS 131 (N.D. 1966).

This section and N.D.C.C. § 39-08-01(1)(a) are not unconstitutionally overbroad and did not violate appellant’s substantive due process rights guaranteed by the Fourteenth Amendment to the United States Constitution and N.D. Const., Art. I, § 12. City of Fargo v. Stensland, 492 N.W.2d 591, 1992 N.D. LEXIS 232 (N.D. 1992).

Applicability.

Admissibility of a vitreous humor and urine sample in a wrongful death action was governed by the Federal Rules of Evidence, not N.D.C.C. § 39-20-07, as the state statute was procedural in nature. Olson v. Ford Motor Co., 411 F. Supp. 2d 1149, 2006 U.S. Dist. LEXIS 2865 (D.N.D. 2006).

Appeal by Prosecution.

Where defendant prevailed in his arguments that blood test results were not admissible because the kit used to collect and preserve his blood, which included a vacutainer tube and disinfectant swab, was a “device” within the meaning of subsection (5), that must be, but was not, approved and certified by the state toxicologist before the results could be accepted into evidence, the trial court’s decision to exclude the blood test results was appealable by the State under N.D.C.C. § 29-28-07. City of Fargo v. Cossette, 512 N.W.2d 459, 1994 N.D. LEXIS 45 (N.D. 1994).

Attendance of Trial by Analyst.
—In General.

This section confers on a defendant, cost free, the right to subpoena as a witness the person who conducted the chemical analysis. It does not, however, relieve the defendant from exercising that right in accordance with rule and statute. Nor is it the source of any freestanding right to have the analyst present at trial that is independent of the constitutional right of compulsory process. State v. Ganje, 481 N.W.2d 227, 1992 N.D. LEXIS 37 (N.D. 1992).

Subdivision (9) provides only that a defendant, at no cost, may subpoena the chemical analyst, but the statute does not give the defendant an absolute right to have the analyst present at trial. Instead, defendant had the duty of assuring analyst’s appearance by serving “timely” the subpoena and moving for continuance if analyst could not testify. State v. Ganje, 481 N.W.2d 227, 1992 N.D. LEXIS 37 (N.D. 1992).

Although ordinarily under subdivision (9) the defendant is entitled to have the analyst present at trial, it did not follow that the analyst’s unavailability, through no fault of the state, justified dismissal under either this section or the Sixth Amendment, where there was nothing in the record to establish that the analyst would not attend trial on another day. State v. Ganje, 481 N.W.2d 227, 1992 N.D. LEXIS 37 (N.D. 1992).

Subdivision (9) of this section gives the defendant the right to have the chemist who conducted chemical analysis testify at trial when properly summoned; when the chemist is unlocatable and thus truly unavailable to testify, suppression of the test results is justified. State v. Zink, 519 N.W.2d 581, 1994 N.D. LEXIS 166 (N.D. 1994).

—Continuance.

The surprise admission of a form from toxicologist, after a mid-trial facsimile certification, created an unforeseen need for defendant’s counsel to have the opportunity to cross-examine the chemist who analyzed the blood sample in order to challenge the scientific reliability of the blood test; therefore, the trial court abused its discretion in denying defendant’s motion for a continuance. State v. Nodland, 493 N.W.2d 697, 1992 N.D. LEXIS 253 (N.D. 1992).

—-Refusal to Allow Testimony.

Exclusion of the forensic analyst’s testimony based on defendant’s acquiescence to admission of the chemical test results was contrary to N.D.C.C. § 39-20-07 and the refusal to allow the analyst to testify was unreasonable and warranted a new trial. While defendant admitted to drinking and smelled of alcohol, there was little evidence indicating that he was under the influence of intoxicating liquor and thus, exclusion of the testimony was not harmless. State v. Schwab, 2008 ND 94, 748 N.W.2d 696, 2008 N.D. LEXIS 91 (N.D. 2008).

—Unavailability at Trial

Trial court abused its discretion in impliedly suppressing the results of second blood test and dismissing the charge without giving the state the opportunity to establish chain of custody through means other than unavailable chemist’s testimony, which unavailability did not, in itself, justify suppression of the results of the second blood test; the law does not require that the defendant have the right to subpoena a chemist when that chemist’s analysis is not used to show the defendant’s blood-alcohol content. State v. Zink, 519 N.W.2d 581, 1994 N.D. LEXIS 166 (N.D. 1994).

Blood or Breath Test Results.
—Admissibility.

Drivers' licenses were properly suspended because, assuming consents to warrantless blood tests were involuntary, the exclusionary rule did not apply to administrative license suspension proceedings, given (1) a legislative purpose to gather reliable evidence of intoxication or nonintoxication, (2) a legislative direction to admit evidence of results of fairly administered chemical tests, (3) prior holdings that an affirmative refusal was necessary to withdraw an implied consent to take a test, (4) the role of such proceedings in protecting the public, and (5) U.S. Supreme Court rulings that the government's use of evidence obtained in violation of the Fourth Amendment did not itself violate the Constitution, since a Fourth Amendment violation was fully accomplished by an illegal search or seizure, and no exclusion of evidence could cure the invasion of a defendant's rights. Beylund v. Levi, 2017 ND 30, 889 N.W.2d 907, 2017 N.D. LEXIS 30 (N.D. 2017).

Officer’s testimony established he performed Form 104’s required steps and showed scrupulous compliance with the approved method and the evidence of the blood test was admissible; while the officer’s testimony was adequate to show compliance, the form itself stated to “tear along the perforation and retain for your records,” and a properly completed Form 104 checklist entered into evidence was prima facie evidence of fair administration, chain of custody, and compliance. Korb v. N.D. DOT, 2018 ND 226, 918 N.W.2d 49, 2018 N.D. LEXIS 230 (N.D. 2018).

District court properly affirmed an administrative hearing officer’s decision to suspend defendant’s driving privileges for 180 days for driving under the influence of alcohol because an Intoxilyzer test record and checklist were the necessary and sufficient means to render test results admissible without further foundation, the documentary evidence and the officer’s testimony showed scrupulous compliance with the methods approved by the State Toxicologist, the officer ascertained the 20-minute waiting period, and defendant failed to rebut by presenting evidence that anything was in his mouth during the waiting period. Ebach v. N.D. DOT, 2019 ND 80, 924 N.W.2d 105, 2019 N.D. LEXIS 71 (N.D. 2019).

Administrative hearing officer did not abuse his discretion in admitting an exhibit containing breath test results where the arresting officer testified that a copy of the test record and checklist was a true and correct copy of the original and confirmed the document contained his signature and certification that he had followed the approved method for conducting the test. Ouradnik v. Henke, 2020 ND 39, 938 N.W.2d 392, 2020 N.D. LEXIS 40 (N.D. 2020).

The clear wording of this statute requires that all appropriate chemical tests be admitted into evidence. Broeckel v. Moore, 498 N.W.2d 170, 1993 N.D. LEXIS 47 (N.D. 1993).

The key to admissibility of blood test results is not Form 104, but rather proof that the test has been fairly administered in accordance with the state toxicologist’s methods and procedures. State v. Steier, 515 N.W.2d 195, 1994 N.D. App. LEXIS 4 (N.D. Ct. App. 1994).

The statutorily-required foundation for the trial court’s admission of defendant’s blood-test result under this section was properly established. State v. Asbridge, 555 N.W.2d 571, 1996 N.D. LEXIS 252 (N.D. 1996).

Police officer’s conclusory testimony was insufficient to establish that the driver’s blood test sample had been properly obtained, and was therefore insufficient to establish the test was fairly administered according to the State Toxicologist’s approved methods, N.D.C.C. § 39-20-07. Schlosser v. N.D. DOT, 2009 ND 173, 775 N.W.2d 695, 2009 N.D. LEXIS 207 (N.D. 2009).

Trial court did not abuse its discretion in deciding that the State established that the police officer scrupulously complied with the 20-minute waiting period, required before administering an Intoxilyzer test, as, although defendant testified at trial, he did not testify that he had, in fact, put any chewing tobacco, which he had in his pocket, in his mouth before the test or during the periods that he was left unattended in the squad car. The officer’s testimony that he ascertained the 20-minute waiting period and that defendant did not have anything in his mouth prior to the test left the inference to be drawn by the trial court; thus, the trial court did not err in denying defendant’s N.D.R.Crim.P. 29 motions. State v. Stroh, 2011 ND 139, 800 N.W.2d 276, 2011 N.D. LEXIS 144 (N.D. 2011).

District court properly affirmed a decision by the Department of Transportation suspending defendant's driving privileges for 91 days because the hearing officer did not abuse her discretion in admitting the results of defendant's blood test or the foundational documents where the documents introduced into evidence and certified by the director of the state crime laboratory and a trooper's testimony established that defendant's blood sample was properly obtained, the blood test was fairly administered, an approved method was used, and the test was performed by an authorized person. Filkowski v. Dir., N.D. Dep't of Transp., 2015 ND 104, 862 N.W.2d 785, 2015 N.D. LEXIS 100 (N.D. 2015).

Because a police officer deviated from the approved method to conduct breath tests which may have affected the scientific accuracy or reliability of the test, and there was no expert testimony on the effect, if any, of the deviation, the Department of Transportation failed to show that the test was fairly administered under N.D.C.C. § 39-20-07(5). Therefore, the hearing officer should not have admitted appellant's Intoxilyzer test record into evidence. Keller v. N.D. DOT, 2015 ND 81, 861 N.W.2d 768, 2015 N.D. LEXIS 81 (N.D. 2015).

In a driving under the influence case, blood test results were not inadmissible because normal evidentiary procedures could have been used, rather than the statutory method of blood test authentication under the short cut statute. The State provided sufficient evidence to authenticate the results where the district court heard testimony from every individual involved in the administration of defendant's blood test. State v. Gackle, 2015 ND 271, 871 N.W.2d 589, 2015 N.D. LEXIS 288 (N.D. 2015).

Hearing officer did not act arbitrarily, unreasonably, or capriciously admitting an Intoxilyzer report into evidence where the designee of the state crime laboratory director had the proper authorization to act as the designee, and his memo, along with the testimony of the officer administering the test and the chemical test operator, laid a proper foundation for admitting the report. Williamson v. Dir., N.D. DOT, 2015 ND 273, 871 N.W.2d 448, 2015 N.D. LEXIS 284 (N.D. 2015).

Trial court did not abuse its discretion in concluding that there was scrupulous compliance with the approved method for drawing blood and admitting defendant's blood test results into evidence, as he did not submit evidence at trial showing that the nurse's shaking of the blood tube, rather than inverting it, had any negative effect on the blood test results. State v. Van Zomeren, 2016 ND 98, 879 N.W.2d 449, 2016 N.D. LEXIS 94 (N.D. 2016).

Sufficient foundation was established to admit a blood sample analysis at an administrative hearing on suspending a driver's driving privileges because (1) the report was properly certified by a forensic scientist who identified the scientist as a designee of the Director of the North Dakota Office of Attorney General, Crime Laboratory Division and stated the report was a true and correct copy of the original on electronic file at the Attorney General's office, (2) the report bore the seal of the North Dakota Office of Attorney General, Crime Laboratory Division, and (3) the scientist was identified on the “List of Individuals Certified to Conduct Blood Alcohol Analysis,” so the report was self-authenticating under N.D. R. Evid. 902(10), and (4) the driver presented nothing contested the report's presumed authenticity. Jangula v. N.D. DOT, 2016 ND 116, 881 N.W.2d 639, 2016 N.D. LEXIS 125 (N.D. 2016).

—Burden of Proof.

Because the state toxicologist has chosen the vacutainer as a component of North Dakota’s blood collection kits and has assembled the kits in his office, the burden is on one challenging its reliability to demonstrate the vacutainer used to collect blood is unreliable. Bieber v. North Dakota Dep't of Transp. Director, 509 N.W.2d 64, 1993 N.D. LEXIS 219 (N.D. 1993).

Although documented compliance with the toxicologist’s approved procedures is also prima facie evidence of fair administration in an alcohol related proceeding, subdivision (5) of this section includes both fair administration and compliance with approved procedures as foundational elements for test results; therefore, to rebut the foundation documented by the prosecution, a defendant can establish either a scientifically-significant deviation from approved procedures or a lack of fair administration despite compliance with those instructions. State v. Zimmerman, 516 N.W.2d 638, 1994 N.D. LEXIS 114 (N.D. 1994).

—Chain of Custody.

Subsection (10) of this section was not applicable where the defendant was not disputing that the blood sample was properly drawn, but was saying in effect that there was no evidence indicating that the blood that was drawn was carefully preserved and sent to the state toxicologist. State v. Reil, 409 N.W.2d 99, 1987 N.D. LEXIS 359 (N.D. 1987).

While it is not necessary for the state to call all persons who have handled the blood sample in order to introduce the test results, it is incumbent upon the state to show that the sample tested is the same one originally drawn from the defendant; because the state failed to prove that the blood sample tested was the same one drawn from the defendant, the trial court erred in admitting the blood-alcohol test result as evidence. State v. Reil, 409 N.W.2d 99, 1987 N.D. LEXIS 359 (N.D. 1987).

Compliance with Form 104 adequately demonstrates the connection between the taking of the blood sample and its receipt at the state toxicologist’s office, to establish the chain of custody. State v. Jordheim, 508 N.W.2d 878, 1993 N.D. LEXIS 227 (N.D. 1993).

Suspension of the driving privileges of a driver was affirmed because the testimony information on the top portion of Form 104 and the testimony of the two arresting police officers regarding the handling of the blood sample was sufficient to clear up any chain of custody concerns regarding the blood sample as required pursuant to N.D.C.C. § 39-20-07. The officers testified that they followed the required procedures, that the mix-up in the dates was due to poor handwriting, and that the driver’s blood sample was the only sample that they handled on the days at issue. Barros v. N.D. DOT, 2008 ND 132, 751 N.W.2d 261, 2008 N.D. LEXIS 125 (N.D. 2008).

—Delay in Processing Sample.

Where blood sample was taken from deceased, placed in an unsealed container and not refrigerated or processed for several hours, there was sufficient doubt that the evidence was in the same condition as when removed to bar its admissibility. Erickson v. North Dakota Workmen's Compensation Bureau, 123 N.W.2d 292, 1963 N.D. LEXIS 110 (N.D. 1963).

—Location of Machine

Absent evidence of an effect upon the intoxilyzer machine’s reliability, the discrepancy between the location listed in the annual register and the machine’s actual location did not make the test results inadmissible. Brandt v. North Dakota State Highway Comm'r, 409 N.W.2d 645, 1987 N.D. LEXIS 374 (N.D. 1987).

—Reliability of Chemical Test.

The reliability of a chemical test is normally considered twice in a trial, once by the court for its competence as evidence, and again by the jury for its weight as evidence. Jury instructions should reflect this functional difference consistent with the constitutional burden on the prosecution to prove the test results as an element of the offense charged. State v. Vogel, 467 N.W.2d 86, 1991 N.D. LEXIS 40 (N.D. 1991).

—Time of Test.

A blood test showing a result more than 0.05 percent is relevant evidence on whether the person is under the influence of intoxicating liquor, even without any presumptive effect due to the fact that it was not performed within two hours of arrest. State v. Vetsch, 368 N.W.2d 547, 1985 N.D. LEXIS 325 (N.D. 1985).

In a prosecution for driving under the influence, it was for the court to make the preliminary determination of whether a blood test allegedly taken more than two hours after arrest was properly obtained and fairly administered for statutory admissibility. It was for the jury to assess its relevancy and weight. State v. Vetsch, 368 N.W.2d 547, 1985 N.D. LEXIS 325 (N.D. 1985).

Evidence sufficient to support a finding that blood test was performed within two hours, and evidence to the contrary in defendant’s testimony, went to the use and weight to be given to the test report, not its reliability. Therefore, it was proper for the trial court to admit the test report to permit the jury to determine whether the test was obtained within two hours and to properly assess its weight. State v. Vetsch, 368 N.W.2d 547, 1985 N.D. LEXIS 325 (N.D. 1985).

The two-hour time limit contained in N.D.C.C. § 39-08-01 is merely a partial description of one of the prohibited acts constituting a violation and has nothing to do with admissibility of chemical test results. City of Grand Forks v. Soli, 479 N.W.2d 872, 1992 N.D. LEXIS 31 (N.D. 1992).

Admissibility of chemical test results is governed by this section, which does not condition admissibility of a chemical test result upon the test’s performance within two hours of an arrested person’s driving of a motor vehicle as prescribed in N.D.C.C. § 39-08-01. City of Grand Forks v. Soli, 479 N.W.2d 872, 1992 N.D. LEXIS 31 (N.D. 1992).

Results of the blood test administered approximately nine hours after accident were relevant to the amount of alcohol in defendant’s blood at the time of the accident, and were properly admitted into evidence. State v. Miller, 530 N.W.2d 652, 1995 N.D. LEXIS 59 (N.D. 1995).

District court erred in reversing an administrative hearing officer’s decision that suspended a driver’s privileges for 91 days because there was evidence in the record to support the administrative hearing officer’s decision when an officer testified that he checked the driver’s mouth and waited 19 minutes to administer a breath test. Steinmeyer v. DOT, 2009 ND 126, 768 N.W.2d 491, 2009 N.D. LEXIS 124 (N.D. 2009).

Compliance with State Toxicologist’s Directions.
—In General.

Where officer failed to start the standard test at zero, thus violating the approved procedures on file with the clerk of the district court, the results of the breathalyzer test were improperly admitted into evidence, because of the lack of a full showing that the test was administered as required by this section. Moser v. North Dakota State Highway Comm'r, 369 N.W.2d 650, 1985 N.D. LEXIS 337 (N.D. 1985), commenting that while the foundational defect might have been cured through testimony of the state toxicologist, no such testimony was presented.

The state did not show that test was administered in accordance with the state toxicologist’s established methods and procedures for blood sample collection and submission, where the state attempted to prove compliance with the approved methods and to meet its burden of establishing fair administration of the test by introducing testimony of the arresting officer, but the officer’s testimony did not establish that he performed each and every step of the test in accordance with the detailed procedures promulgated by the state toxicologist, and no other evidence was provided by the state regarding compliance with the state toxicologist’s directives for blood sample collection and submission. State v. Sivesind, 439 N.W.2d 530, 1989 N.D. LEXIS 82 (N.D. 1989).

Blood sample test results are admissible under this section only after the proponent establishes fair administration of the test. Fair administration may only be established through proof of compliance with the state toxicologist’s directions which go to the scientific accuracy of the test or through expert testimony establishing the scientific accuracy of the test. City of Fargo v. Komulainen, 466 N.W.2d 610, 1991 N.D. LEXIS 43 (N.D. 1991).

Where the administering officer deviated from the state toxicologist’s approved method to conduct a breath test with an intoxilyzer and there was no expert testimony on the effect, if any, of the deviation on the accuracy and reliability of the intoxilyzer test result, the hearing officer should not have admitted the intoxilyzer test result into evidence. Price v. North Dakota Dep't of Transp. Director, 469 N.W.2d 560, 1991 N.D. LEXIS 89 (N.D. 1991).

Where there is nothing in the record to indicate that the state toxicologist requires blood samples to be refrigerated, and the officer testified he followed the state toxicologist’s directions, defendant failed to show that the blood sample test was not fairly administered. City of Fargo v. Komulainen, 466 N.W.2d 610, 1991 N.D. LEXIS 43 (N.D. 1991).

Without strict compliance with the approved methods, the scientific accuracy of the test cannot be established absent expert testimony. Bryl v. Backes, 477 N.W.2d 809, 1991 N.D. LEXIS 197 (N.D. 1991).

Reliability and accuracy of the results are established by demonstrating compliance with the methods adopted by the state toxicologist. Because this section permits admission of such evidence without expert witness testimony to establish accuracy and reliability, all the requirements of this section must be scrupulously met to ensure a uniform basis of testing throughout the state and fair administration. Kummer v. Backes, 486 N.W.2d 252, 1992 N.D. LEXIS 140 (N.D. 1992).

If the documentary evidence and the testimony of the participants in administering the blood-alcohol test do not show scrupulous compliance with the methods approved by the state toxicologist, the statutory mode of authentication in this section cannot be used. State v. Jordheim, 508 N.W.2d 878, 1993 N.D. LEXIS 227 (N.D. 1993).

Where the highway patrolman had completed defendant’s breath test using the state toxicologist’s approved method, and then second card was placed into intoxilyzer, which the machine would not accept, defendant could not argue his test was not taken under the approved method because the second card was not preserved. State v. Lamb, 541 N.W.2d 457, 1996 N.D. LEXIS 10 (N.D. 1996).

Officer did not deviate from the approved method by inserting test record after diagnostic tests were completed, and intoxilyzer test results were properly admitted. City of Grand Forks v. Egley, 542 N.W.2d 104, 1996 N.D. LEXIS 18 (N.D. 1996).

In license suspension case, the state toxicologist’s approved method for administering intoxilyzer test did not require test operators to ask subjects if they had anything in their mouths or to check their mouths prior to administering the test where test operators ascertained the driver had nothing to eat drink, or smoke in the 20 minutes before the test. Buchholz v. N.D. DOT, 2002 ND 23, 639 N.W.2d 490, 2002 N.D. LEXIS 28 (N.D. 2002).

Where deputy testified he followed the state toxicologist’s approved method in giving an Intoxilyzer 5000 test to motorist and the test result did not print the correct date and the deputy wrote the correct date on the test result, the test was nevertheless in compliance with the methods established by the state toxicologist and admissible. Henderson v. Dir., N.D. DOT, 2002 ND 44, 640 N.W.2d 714, 2002 N.D. LEXIS 45 (N.D. 2002).

Trial court erred when it reversed the administrative suspension of defendant’s driving privileges because it misapplied the law when it held that that the waiting period for the S-D2 test could not be used as part of the 20-minute waiting period before the administration of the Intoxilyzer test, and it had been over 20 minutes from the time defendant was arrested, at 1:32 A.M., to the time the Intoxilyzer test was administered at 1:51 A.M., and he had been handcuffed and in police custody all of that time. Johnson v. N.D. DOT, 2004 ND 59, 676 N.W.2d 807, 2004 N.D. LEXIS 70 (N.D. 2004).

North Dakota State Toxicologist’s approved method for administering an Intoxilyzer test provides that before proceeding, the operator must ascertain that the subject has had nothing to eat, drink, or smoke within twenty minutes prior to the collection of the breath sample; scrupulous compliance does not mean hypertechnical compliance, and observation of a defendant is not the exclusive method of ascertaining whether the 20-minute requirement in the administration of an Intoxilyzer test has been met. Johnson v. N.D. DOT, 2004 ND 59, 676 N.W.2d 807, 2004 N.D. LEXIS 70 (N.D. 2004).

Unless the North Dakota State Toxicologist includes in the approved method which is filed with the appropriate entity a specific reference to a supplemental filing, stating that it is a required part of the approved method for fair administration of an alcohol test, it will not be inferred that a filed document is part of the foundational requirement for proving fair administration of the test. City of Bismarck v. Bosch, 2005 ND 12, 691 N.W.2d 260, 2005 N.D. LEXIS 7 (N.D.), cert. denied, 545 U.S. 1141, 125 S. Ct. 2980, 162 L. Ed. 2d 890, 2005 U.S. LEXIS 5063 (U.S. 2005).

While a licensee’s hands were not handcuffed behind his body, he was patted down, his pockets were emptied, all items retrieved from his pockets were placed on the front seat of the patrol car, and he was placed in the back seat during the five-minute period in which a trooper was not actually watching him, and such facts permitted a reasonable fact-finder to infer that the licensee did not put anything in his mouth during the trooper’s absence from the vehicle. Because scrupulous, but not hypertechnical, compliance was required in administering an Intoxilyzer test under N.D.C.C. § 39-20-07(5), and because a fact-finder could draw reasonable inferences from the facts, a district court erred in concluding that the Department of Transportation failed to establish that it fairly administered the test to the licensee. Buchholtz v. Dir., N.D. DOT, 2008 ND 53, 746 N.W.2d 181, 2008 N.D. LEXIS 51 (N.D. 2008).

Fact that a trooper did not check a driver’s mouth at the time of arrest did not suggest the trooper failed to comply with the approved method for administering an Intoxilyzer test because the State Toxicologist’s approved method did not require test operators to ask subjects if they have anything in their mouths or to check their mouths prior to administering the test. Buchholtz v. Dir., N.D. DOT, 2008 ND 53, 746 N.W.2d 181, 2008 N.D. LEXIS 51 (N.D. 2008).

When defendant was arrested for driving under the influence of alcohol, he was transported to a where his blood was drawn by a registered nurse using a blood testing kit supplied by the North Dakota State Toxicologist; the officer inspected the exterior of the kit to ensure that it was sealed and that the expiration date had not passed, and he opened the kit and inspected its contents. After the nurse completed the blood draw, she and the officer recorded their actions on Form 104 and mailed the kit to the state crime lab for analysis; because the officer’s handling of the kit complied with N.D.C.C. § 39-20-07(5), (10), defendant’s blood alcohol sample showing a concentration of .13 percent was properly admitted into evidence. State v. Gietzen, 2010 ND 82, 786 N.W.2d 1, 2010 N.D. LEXIS 128 (N.D. 2010), overruled in part, State ex rel. Roseland v. Herauf, 2012 ND 151, 819 N.W.2d 546, 2012 N.D. LEXIS 161 (N.D. 2012).

Police officer scrupulously followed the approved method in administering the second breath test sequence. The officer's decision to manually abort the first test sequence could not have affected the results of the second independent test sequence administered less than five minutes later. State v. Ruden, 2017 ND 185, 900 N.W.2d 58, 2017 N.D. LEXIS 197 (N.D. 2017).

—Calibration Checks.

Defendant’s conviction for driving under the influence of alcohol was upheld because evidence of calibration checks on an Intoxilyzer 5000 machine was not a foundational requirement for the admission of defendant’s test results into evidence pursuant to N.D.C.C. § 39-20-07(5). City of Grand Forks v. Scialdone, 2005 ND 24, 691 N.W.2d 198, 2005 N.D. LEXIS 18 (N.D. 2005).

It was error for the district court to reverse the decision of the North Dakota Department of Transportation (DOT) admitting results of driver’s intoxilyzer test where there was evidence that the Intoxilyzer test was fairly administered in accordance with N.D.C.C. § 39-20-07, because the documents concerning the machine’s accuracy were properly completed and certified. The DOT was not required to furnish the hearing officer with a recalibration certificate after the machine was moved because the requirement was not expressly included in the prescribed methods provided by the State Toxicologist. Kiecker v. N.D. DOT, 2005 ND 23, 691 N.W.2d 266, 2005 N.D. LEXIS 15 (N.D. 2005).

Preponderance of the evidence supported the North Dakota Department of Transportation’s decision to suspend a licensee’s driving privileges because the Department was not required to show that an Intoxilyzer machine had been recalibrated after a move to prove that the test was fairly administered, pursuant to N.D.C.C. § 39-20-07(5). Leno v. N.D. DOT, 2008 ND 10, 743 N.W.2d 794, 2008 N.D. LEXIS 4 (N.D. 2008).

—Devices.

The term “devices”, as used in subdivision (5) of this section, refers to the testing equipment used to perform the chemical analysis of the subject sample, and not to auxiliary equipment or devices used during the testing procedure. Schense v. Hjelle, 386 N.W.2d 888, 1986 N.D. LEXIS 306 (N.D. 1986).

The legislative assembly, by its use of the term “devices” in subdivision (5) of this section, did not intend to expand the certification and approval requirements of the state toxicologist to include auxiliary equipment that might be used in conjunction with a specific testing device, but merely recognized the need for a method of approving new testing equipment as it became available for use. Schense v. Hjelle, 386 N.W.2d 888, 1986 N.D. LEXIS 306 (N.D. 1986).

A vacutainer, a sealed tube used to store and preserve a blood sample until it can be analyzed by the state toxicologist, is not used to perform chemical analysis and, therefore, is not a “device” under subsection 5 of this section. Bieber v. North Dakota Dep't of Transp. Director, 509 N.W.2d 64, 1993 N.D. LEXIS 219 (N.D. 1993).

Trial court did not abuse its discretion in determining that the recorder integrator, one of the components of the gas chromatograph, is not an instrument so fraught with the possibility of undetected error in the test results that it is a device which must be approved by the state toxicologist, and admitting the blood-test results over defendant’s objection on that ground. State v. Erickson, 517 N.W.2d 646, 1994 N.D. LEXIS 122 (N.D. 1994).

—Intoxilyzer Instructions.

Interpretation of the approved method for breath testing is a legal question, and in light of the state toxicologist’s intent that the approved method supplement, rather than replace, the instructions displayed by the intoxilyzer, the phrase “display time expires” does not refer to the chronological time. Hettich v. Moore, 514 N.W.2d 378, 1994 N.D. LEXIS 83 (N.D. 1994).

Suspension of the driver’s driving privileges for 91 days was upheld where his stop at a sobriety checkpoint was constitutional, N.D. Const.art. I, § 8, U.S. Const. amend. IV, as the stop of the driver at the checkpoint was reasonable; under N.D.C.C. § 39-20-07(5), the driver’s breath tests were administered according to the approved method and the hearing officer did not err by admitting the results into evidence. Martin v. N.D. DOT, 2009 ND 181, 773 N.W.2d 190, 2009 N.D. LEXIS 187 (N.D. 2009).

—Refusal to Comply.

Where driver ignored officer’s request to rinse his mouth with water to clear his mouth of tobacco on two occasions, driver in effect refused to take breath test and could not challenge foundation (compliance with approved methods) for admissibility of test results. Bryl v. Backes, 477 N.W.2d 809, 1991 N.D. LEXIS 197 (N.D. 1991).

A person cannot intentionally retain a substance in his or her mouth after being requested to dispose of it, and then claim that the intoxilyzer test results are inaccurate based upon failure to comply with the approved methods. In such a case, a defendant cannot challenge the foundation for the admission of the test results established by following the approved methods. State v. Bryl, 477 N.W.2d 814, 1991 N.D. LEXIS 198 (N.D. 1991).

Driver was barred from challenging the admissibility of the driver’s Intoxilyzer test results, where the driver failed to reveal to the officer administering the test that the driver had chewing tobacco in his mouth during the test. Knoll v. N.D. DOT, 2002 ND 84, 644 N.W.2d 191, 2002 N.D. LEXIS 98 (N.D. 2002).

—Standard Testing Solution.

Where the commissioner produced in evidence a certified copy of the “Standard Solution Analytical Report,” wherein the state toxicologist certified solution No. 261 as being an approved standard solution for testing if it produced a reading in the range of 0.100 percent to 0.119 percent during the standard solution test phase, and also produced a certified copy of the “Breathalyzer Operational Check List” used by the officer in administering the breath test, which document showed that standard solution No. 261 was used and that the standard test reading was .11, the evidence presented by the commissioner clearly demonstrated that the standard solution used during appellee’s breathalyzer test was adequate for producing accurate and valid test results. Pladson v. Hjelle, 368 N.W.2d 508, 1985 N.D. LEXIS 317 (N.D. 1985).

After the commissioner introduced certified copies relating to the administration of appellee’s test, the fairness and accuracy of the test was prima facie shown. If appellee wished to discredit the test results with evidence that the standard solution was stale, it was his responsibility to produce such evidence at that time. Pladson v. Hjelle, 368 N.W.2d 508, 1985 N.D. LEXIS 317 (N.D. 1985).

Trial court did not abuse its discretion in admitting intoxilyzer test results as there was no requirement in N.D.C.C. § 39-20-07 or the North Dakota State Toxicologist’s approved method that a standard solution be used for only 50 tests; whether more than 50 tests were conducted with the solution used for defendant’s test affected the weight, not the admissibility, of the test results. City of Bismarck v. Bosch, 2005 ND 12, 691 N.W.2d 260, 2005 N.D. LEXIS 7 (N.D.), cert. denied, 545 U.S. 1141, 125 S. Ct. 2980, 162 L. Ed. 2d 890, 2005 U.S. LEXIS 5063 (U.S. 2005).

North Dakota State Toxicologist’s analytical report and the directive therein that a standard solution could be used for up to 50 intoxilyzer tests is not a part of the approved method and proof of that fact is not a prerequisite to showing fair administration of the intoxilyzer test or to admission of the test results. City of Bismarck v. Bosch, 2005 ND 12, 691 N.W.2d 260, 2005 N.D. LEXIS 7 (N.D.), cert. denied, 545 U.S. 1141, 125 S. Ct. 2980, 162 L. Ed. 2d 890, 2005 U.S. LEXIS 5063 (U.S. 2005).

Confrontation Rights.

In defendant’s criminal prosecution for driving under the influence of alcohol, the district court did not err in admitting Form 104 or the deputy state toxicologist’s certification, because those evidentiary documents laid a foundation for the admission of defendant’s chemical analysis and did not attempt to directly prove an element of the charged offense. Defendant’s right to confrontation was not violated by the State’s failure to call the nurse to testify, because the arresting officer and the forensic scientist who tested the blood sample both testified and were cross-examined. State v. Gietzen, 2010 ND 82, 786 N.W.2d 1, 2010 N.D. LEXIS 128 (N.D. 2010), overruled in part, State ex rel. Roseland v. Herauf, 2012 ND 151, 819 N.W.2d 546, 2012 N.D. LEXIS 161 (N.D. 2012).

N.D.R.Ev. 707 requires the State to produce at trial the individual who drew the defendant’s blood sample to satisfy the requirements of N.D.C.C. § 39-20-07 with respect to the defendant’s constitutional right to confrontation. To the extent previous cases, such as State v. Gietzen, 2010 ND 82, 786 N.W.2d 1, and State v. Friedt, 2007 ND 108, 735 N.W.2d 848, 2007 N.D. LEXIS 108 (N.D. 2007), are inconsistent with this holding, they are overruled. State ex rel. Roseland v. Herauf, 2012 ND 151, 819 N.W.2d 546, 2012 N.D. LEXIS 161 (N.D. 2012).

Where a defendant was convicted of driving under the influence, the district court did not err by admitting an analytical report containing the results of her blood test without producing the forensic scientist who peer reviewed the analytical report since report was not testimonial and the State was not required to produce him under N.D.R.Ev. 707 and the Confrontation Clause. State v. Severinson, 2013 ND 121, 833 N.W.2d 517, 2013 N.D. LEXIS 124 (N.D. 2013).

City was entitled to a supervisory writ directing the district court to vacate a pretrial order requiring the city to produce at trial the individual who initially inspected and reviewed the installation of the testing device used to administer a chemical breath test to defendant because the city lacked another adequate remedy, the individual did not make any testimonial statements requiring the city to produce her at trial, there was no statutory language that would require the individual to make testimonial statements, and her statements were more appropriately categorized as foundational, concerning chain of custody, authenticity of the sample, or accuracy of the testing device, as opposed to testimonial. City of W. Fargo v. Olson, 2020 ND 188, 948 N.W.2d 15, 2020 N.D. LEXIS 187 (N.D. 2020).

Cross-Examination of Breathalyzer Operator.

Receipt into evidence of a certified copy of the breathalyzer operator’s license and a certified copy of the list of certified chemical test operators that includes the breathalyzer operator’s name creates a prima facie case of the operator’s proficiency, but such presumption is rebuttable, and defendant is entitled to engage in a reasonable amount of cross-examination into the qualifications of the operator. State v. Entze, 272 N.W.2d 292, 1978 N.D. LEXIS 191 (N.D. 1978).

Fair Administration.
—In General.

Testimony of state toxicologist, or in his absence, certified copies of records relating to approval of method and devices used in administering test for intoxication is necessary to lay foundation for introduction of Breathalyzer results. State v. Fuchs, 219 N.W.2d 842, 1974 N.D. LEXIS 191 (N.D. 1974).

A showing that the test was “fairly administered” is required to establish foundation for admissibility of a Breathalyzer test and full proof that the device was in proper working order, that the chemicals used were proper and properly compounded, that the operator was qualified, and that the test was given correctly are required. State v. Salhus, 220 N.W.2d 852, 1974 N.D. LEXIS 215 (N.D. 1974); State v. Ghylin, 222 N.W.2d 864, 1974 N.D. LEXIS 155 (N.D. 1974).

The foundational requirements needed to show that a breathalyzer test was fairly administered, and that the results are therefore admissible, may be met by testimony of the state toxicologist; the testimony of the state toxicologist, if he testifies, takes precedence over the approved methods placed on file with the district courts. State v. Puhr, 316 N.W.2d 75, 1982 N.D. LEXIS 228 (N.D. 1982).

Because this section permits admission of evidence without expert witness testimony to establish accuracy and reliability, all the requirements of this section must be scrupulously met to ensure a uniform basis of testing throughout the state and fair administration. Moser v. North Dakota State Highway Comm'r, 369 N.W.2d 650, 1985 N.D. LEXIS 337 (N.D. 1985).

The foundational requirements needed to show that a breathalyzer test was fairly administered so as to render the results admissible may be met either through testimony of the state toxicologist or through the introduction of certified copies of approved methods and techniques filed by the state toxicologist with the clerk of the district court pursuant to this section. Moser v. North Dakota State Highway Comm'r, 369 N.W.2d 650, 1985 N.D. LEXIS 337 (N.D. 1985).

Fair administration of an intoxilyzer test may be established in either of two ways: through the state toxicologist’s testimony, or by a showing that the test was performed according to the state toxicologist’s approved method of administering the test. Schirado v. North Dakota State Highway Comm'r, 382 N.W.2d 391, 1986 N.D. LEXIS 264 (N.D. 1986).

Under this section, certified copies of the operational checklist and records showing that the device was approved and that the operator was qualified are admissible to prove fair administration of the test, and even if the requirements of this section are not met, chemical test results can be used as evidence if the proponent supplies other proof that the test was fairly administered. Brandt v. North Dakota State Highway Comm'r, 409 N.W.2d 645, 1987 N.D. LEXIS 374 (N.D. 1987).

Absent a checklist, the test results may not be introduced into evidence without some other showing of fair administration. Salter v. Hjelle, 415 N.W.2d 801, 1987 N.D. LEXIS 438 (N.D. 1987).

The supreme court has applied a presumption of regularity to official acts of the state toxicologist, but has never applied this presumption to testing officers. To do so would effectively eliminate the requirement that the commissioner prove fair administration. Salter v. Hjelle, 415 N.W.2d 801, 1987 N.D. LEXIS 438 (N.D. 1987).

A certified copy of blood test results is admissible pursuant to subsections (8) and (10) only if fair administration of the test has been established in accordance with subsection (5). State v. Schwalk, 430 N.W.2d 317, 1988 N.D. LEXIS 199 (N.D. 1988).

The fair administration of the blood test can only be shown by: (a) proof of compliance with the state toxicologist’s directions which go to the scientific accuracy of the test, or (b) through expert testimony. Kummer v. Backes, 486 N.W.2d 252, 1992 N.D. LEXIS 140 (N.D. 1992).

The statute does not require testimony of the state toxicologist or of the intoxilyzer operator to show fair administration of the test; rather, the purpose of this section is to ease the requirements for admissibility of chemical test results while ensuring that the test upon which the results are based is fairly administered. Frost v. North Dakota Dep't of Transp., 487 N.W.2d 6, 1992 N.D. LEXIS 114 (N.D. 1992).

Documents, including certified copies of the operational checklist, of the approved methods filed by the state toxicologist with the clerk of district court, and of records showing that the device was approved and that the operator was qualified, are admissible to prove fair administration of the test; the statutory scheme authorizes the use of documentary evidence to expedite and simplify the procedure. Frost v. North Dakota Dep't of Transp., 487 N.W.2d 6, 1992 N.D. LEXIS 114 (N.D. 1992).

A chemical test is fairly administered if the operator complies with the approved method of the state toxicologist; compliance with the approved method can be proved by properly completed and certified documents alone, testimony showing that the testing officer performed every step in the approved method, or proof that the missing steps do not significantly affect the test results. Hettich v. Moore, 514 N.W.2d 378, 1994 N.D. LEXIS 83 (N.D. 1994).

The results of a blood-alcohol test must be admitted into evidence in an alcohol-related proceeding if the test was fairly administered according to the toxicologist’s approved procedures. State v. Zimmerman, 516 N.W.2d 638, 1994 N.D. LEXIS 114 (N.D. 1994).

If a defendant rebuts the prosecution’s prima facie showing of fair administration of a blood-alcohol test for admission under N.D.C.C. § 39-20-07(5), the prosecution may present testimony to show fair administration despite the defendant’s rebuttal. City of Grand Forks v. Scialdone, 2005 ND 24, 691 N.W.2d 198, 2005 N.D. LEXIS 18 (N.D. 2005).

—Expert Testimony.

Trial court did not err when it allowed a forensic scientist to testify regarding defendant's chemical blood test because, while the prosecution did not lay the proper foundation required by statute, an expert testified about the testing, the test results were not admitted into evidence, and the jury never heard them. City of Jamestown v. Hanson, 2015 ND 249, 870 N.W.2d 195, 2015 N.D. LEXIS 262 (N.D. 2015).

Certified copies of the operational checklist and listings of approved chemical testing devices and certified operators are cumulatively sufficient to prove fair administration, however, this section does not make such evidence the exclusive means to establish fair administration and other evidence may be offered; other proof of fair administration may be provided by testimony of the state toxicologist or a showing that the test was performed according to the approved method. Salter v. Hjelle, 415 N.W.2d 801, 1987 N.D. LEXIS 438 (N.D. 1987).

If the state fails to establish compliance with the state toxicologist’s directions for blood sample collection which go to the scientific accuracy and reliability of the test, the state must prove fair administration of the test through expert testimony. State v. Schwalk, 430 N.W.2d 317, 1988 N.D. LEXIS 199 (N.D. 1988).

When the state fails to establish compliance with the state toxicologist’s directions which go to the scientific accuracy of the Intoxilizer test, the state must prove fair administration of the test through expert testimony. Schwind v. Director, N.D. Dep't of Transp., 462 N.W.2d 147, 1990 N.D. LEXIS 214 (N.D. 1990).

—Not Shown.

Where the Intoxilyzer record did not establish that the approved method was followed in its entirety, it could not substitute for a checklist, and the commissioner failed to establish that the test was fairly administered; therefore, the hearing officer erred in admitting the Intoxilyzer test results, and there was insufficient remaining evidence to warrant suspension of the defendant’s driving privileges. Salter v. Hjelle, 415 N.W.2d 801, 1987 N.D. LEXIS 438 (N.D. 1987).

Certified copies of the state toxicologist’s approved method and the lists of certified chemical test operators and approved chemical testing devices are regularly kept records of the commissioner, and thus are prima facie evidence of their contents; however, where their contents did not show that the test was fairly administered or that the test was performed according to approved methods and with approved devices, they did not provide the necessary foundation for test results without a checklist. Salter v. Hjelle, 415 N.W.2d 801, 1987 N.D. LEXIS 438 (N.D. 1987).

Where the state failed to show that the nurse or arresting officer inverted a vial containing defendant’s blood sample pursuant to the procedure prescribed by the state toxicologist in Form 104, the state could have attempted to cure the foundational defect through testimony of the state toxicologist explaining the effect of failure to invert the vial; however, compliance with procedure would not be presumed. State v. Schwalk, 430 N.W.2d 317, 1988 N.D. LEXIS 199 (N.D. 1988).

Where the wrong date appeared on the Intoxilyzer test results, and there was no expert testimony on the effect, if any, of the incorrect test date on the accuracy of the blood-alcohol test results or whether the testing operator deviated from the approved method, the test results were inadmissible. Ringsaker v. Director, N.D. DOT, 1999 ND 127, 596 N.W.2d 328, 1999 N.D. LEXIS 147 (N.D. 1999).

Reversal of the Department of Transportation’s suspension of a driver’s operating license after his DUI arrest was proper as the administrative hearing officer should not have received the results of the blood test when there was evidence the test was not administered in accordance with the approved method under N.D.C.C. § 39-20-07(5). Bollin v. N.D. DOT, 2005 ND 91, 696 N.W.2d 527, 2005 N.D. LEXIS 98 (N.D. 2005).

District court abused its discretion in admitting a chemical breath test where the approved method for conducting the chemical test at issue required the device be installed by a field inspector, but the record did not contain any documentation establishing the device was installed by a field inspector or expert testimony establishing the test was fairly administered. State v. Blaskowski, 2019 ND 192, 931 N.W.2d 226, 2019 N.D. LEXIS 193 (N.D. 2019).

—Shown.

Where medical technologist conducted a blood alcohol test using a gas chromatograph, there was no need to spot-check the known solution in order to be certain that it contained what it should; where the person administering the test was an expert and the test was performed under laboratory conditions, the requirements of State v. Salhus, 220 N.W.2d 852 (N.D. 1974), distinguished, State v. Erickson, 241 N.W.2d 854 (N.D. 1976), did not apply, and the results of the test were entitled to a presumption of regularity until contradicted by other evidence. State v. Erickson, 241 N.W.2d 854, 1976 N.D. LEXIS 224 (N.D. 1976).

Where, in prosecution under this section, state introduced evidence that the breathalyzer machine used to determine intoxication had been recently inspected and found to be in good working order; that the officer who administered the test was a certified operator of the machine; that the prescribed procedure had been followed in administering the test; that the ampules and standard solution used had been inspected and certified; and that the ampules and solution had been in the continuous custody of the administering officer from the time of their certification to the time of use; it had adequately shown, absent evidence to the contrary, that the test was “fairly administered” within the meaning of this section. State v. Ghylin, 248 N.W.2d 825, 1976 N.D. LEXIS 174 (N.D. 1976).

Where the approved method to conduct breath test with breathalyzer had been authorized by the state toxicologist before defendant’s arrest for drunken driving and had been filed with and certified by the clerk of the district court after the arrest but before defendant’s trial, certified copy of the approved method was admissible at trial as prima facie evidence that the breathalyzer test had been fairly administered. State v. Schneider, 270 N.W.2d 787, 1978 N.D. LEXIS 149 (N.D. 1978).

Although officer who administered the breathalyzer test did not comply with the approved methods to conduct such test filed with the district court, the test was “fairly administered” and its results admissible where the state toxicologist testified that each of the individual mistakes in administering the test had an insignificant effect on the result and that, considering everything that went wrong, the indicated result could be less by .01 percent. State v. Guthmiller, 350 N.W.2d 600, 1984 N.D. LEXIS 326 (N.D. 1984).

It was unnecessary to decide whether the inspection of an intoxilyzer 370 days after its last inspection complied with this section, where the state highway commissioner demonstrated through other evidence that the defendant’s test was fairly administered. Brandt v. North Dakota State Highway Comm'r, 409 N.W.2d 645, 1987 N.D. LEXIS 374 (N.D. 1987).

Where a majority of the documents which were not timely disclosed by the state were available in the clerk of court office under subdivision (6) of this section, the defendant was not prejudiced by the state’s failure to comply with the discovery rules, and material which the state failed to disclose was properly admitted. State v. Thomas, 420 N.W.2d 747, 1988 N.D. LEXIS 39 (N.D. 1988).

Where the only “deviation” from the state toxicologist’s directions on Form 104 was that the nurse did not check the box indicating whether the container seal on the blood kit canister was intact before use, and the deputy inspected the seal, found it to be intact, and initialed Form 104 so as to so certify, that fact did not require expert testimony and did not preclude suspension of driving privileges. Schwind v. Director, N.D. Dep't of Transp., 462 N.W.2d 147, 1990 N.D. LEXIS 214 (N.D. 1990).

Blood test results were properly admitted where “other evidence” was offered by the director of transportation to prove fair administration of the blood test; the arresting officer testified that each and every one of the nine steps on the checklist was followed, and his testimony provided the necessary proof to show that the approved methods for conducting the blood test were “scrupulously” met, even though there was no certified copy of the blood test checklist. McNamara v. Director of N.D. Dep't of Transp., 500 N.W.2d 585, 1993 N.D. LEXIS 99 (N.D. 1993).

Trial court did not abuse its discretion in determining that defendant’s blood test was fairly administered despite the nurse’s failure to use a second needle to draw the sample. State v. Erickson, 517 N.W.2d 646, 1994 N.D. LEXIS 122 (N.D. 1994).

Trial court did not abuse its discretion in concluding that defendant’s blood test was fairly administered despite the nurse’s failure to indicate that she used a second disinfectant swab where deputy testified that the second disinfectant swab was the same type of disinfectant as provided in the blood-test kit. State v. Erickson, 517 N.W.2d 646, 1994 N.D. LEXIS 122 (N.D. 1994).

North Dakota Department of Transportation established a proper foundation for admission of the driver’s intoxilyzer test results by showing the test was performed in accordance with the approved method; therefore, the hearing officer did not abuse his discretion by admitting the intoxilyzer test results into evidence. Doll v. N.D. DOT, 2005 ND 62, 693 N.W.2d 627, 2005 N.D. LEXIS 72 (N.D. 2005).

Reasoning mind reasonably could have concluded that the hearing officer’s finding that the driver did not have anything to eat, drink, or smoke during the twenty minutes before the Intoxilyzer test was supported by the weight of the evidence on the entire record, N.D.C.C. § 39-20-07; the administrative suspension of the driver’s driving privileges was reinstated. Thorsrud v. Dir., N.D. DOT, 2012 ND 136, 819 N.W.2d 483, 2012 N.D. LEXIS 143 (N.D. 2012).

Hearing officer’s decision suspending appellee’s driving privileges for ninety-one days for DUI was reinstated, because the Intoxilyzer test was fairly administered under N.D.C.C. § 39-20-07(5) in accordance with the approved method based on the weight of the evidence on the entire record. Based on the officer’s testimony that appellee was arrested and his mouth was cleared at 1.00 a.m. and the the Intoxilyzer test was administered at 1:25 a.m., a reasonable person could infer the twenty-minute wait period was observed. Mees v. N.D. DOT, 2013 ND 36, 827 N.W.2d 345, 2013 N.D. LEXIS 36 (N.D. 2013).

In a prosecution of defendant for driving under the influence, the trial court properly admitted defendant’s chemical blood test. The documents introduced into evidence and certified by the State Toxicologist’s assignee, coupled with a deputy’s testimony, established defendant’s blood test was fairly administered. State v. Keller, 2013 ND 122, 833 N.W.2d 486, 2013 N.D. LEXIS 130 (N.D. 2013).

Field Inspectors.

Subdivision 6 of this section is directed to field inspectors of breath-testing equipment and its operation, not to expert, laboratory blood testing. State v. Vande Hoven, 388 N.W.2d 857, 1986 N.D. LEXIS 324 (N.D. 1986).

It was error to admit breath test results because (1) evidence the relevant Intoxilyzer 8000 was inspected at the crime lab did not show the device's installation by a field inspector, so the Department of Transportation did not comply with N.D.C.C. § 39-20-07, and (2) no expert testimony showed the test was fairly administered. Ell v. Dir., DOT, 2016 ND 164, 883 N.W.2d 464, 2016 N.D. LEXIS 162 (N.D. 2016).

Judicial Notice.

The fact that Form 104 represents the state toxicologist’s approved method for blood sample collection and submission is not subject to reasonable dispute, and therefore is properly the subject of judicial notice. State v. Jordheim, 508 N.W.2d 878, 1993 N.D. LEXIS 227 (N.D. 1993).

Jury Instructions.

In a trial under N.D.C.C. § 39-08-01, the language of subsection (5) of this section was improperly included in instructions to the jury because it has only to do with the judge’s preliminary function of admitting evidence; it has nothing to do with the jury’s function of weighing the evidence. By telling the jury that the test results were received in evidence when the test was fairly administered, this instruction shifted the burden of disputing the test results to the defendant and violated his right to due process. State v. Vogel, 467 N.W.2d 86, 1991 N.D. LEXIS 40 (N.D. 1991).

The language of this section was improperly included in the instruction to the jury because it has only to do with the judge’s preliminary function of admitting evidence; it has nothing to do with the jury’s function of weighing the evidence. State v. Zummach, 467 N.W.2d 745, 1991 N.D. LEXIS 62 (N.D. 1991).

Presumptions.

Jury instruction stating that the presumption of subsection 3 of this section “serves as evidence and governs you in finding the facts unless it is disproved by evidence or if, from the evidence, you have a reasonable doubt as to the existence of the presumed fact” was not erroneous; taken by itself, the first clause of the instruction would have been improper, but modified by the second clause it sufficiently indicated that presumptive evidence might be accepted or rejected by the jury as they saw fit, and that defendant’s failure to disprove the presumption did not ease the state’s burden of proof. State v. Hendrickson, 240 N.W.2d 846, 1976 N.D. LEXIS 190 (N.D. 1976).

While supreme court stated it would be advisable for trial court to give a jury instruction regarding the words “presumption” or “presumed” to the effect that they are rebuttable presumptions, failure of trial court to give jury instruction that result of the breathalyzer test was a rebuttable presumption did not constitute error where the instructions given the jury, as a whole, were not erroneous and correctly and adequately apprised the jury of the law relative to driving while under the influence of intoxicating liquor including the meaning of the phrase “under the influence of intoxicating liquor”, that the state had the burden to prove each and every one of the allegations of the complaint beyond a reasonable doubt, and that the defendant is presumed innocent until his guilt is proven beyond a reasonable doubt. State v. Hepper, 316 N.W.2d 338, 1982 N.D. LEXIS 215 (N.D. 1982), overruled in part, State v. Himmerick, 499 N.W.2d 568, 1993 N.D. LEXIS 77 (N.D. 1993).

Certified copy of the analytical report signed by the state toxicologist is prima facie evidence of the results of the chemical analysis of the sample and it can be assumed, when there is no evidence to the contrary, that the chemical analysis was performed according to the law. State v. Hanson, 345 N.W.2d 845, 1984 N.D. LEXIS 257 (N.D. 1984).

Where analytical report indicated defendant’s blood sample contained alcohol in the concentration of .11 percent “by weight”, but did not state that the analysis was based upon “grams of alcohol per one hundred cubic centimeters of blood”, there was a rebuttable presumption that the result of the analysis was based upon “grams of alcohol per one hundred cubic centimeters of blood”, and the analytical report was admissible where no contradictory evidence was introduced to rebut the presumption. State v. Hanson, 345 N.W.2d 845, 1984 N.D. LEXIS 257 (N.D. 1984).

The presumption that the state toxicologist has sufficiently trained all certified operators, adopted accurate and reliable methods of chemical analysis, and listed all devices that should be approved does not remove the prosecution’s obligation to prove that a certified operator tested the sample using approved methods and devices. State v. Zimmerman, 516 N.W.2d 638, 1994 N.D. LEXIS 114 (N.D. 1994).

Purpose.

The purpose of subdivisions (5) and (6) of this section is to ease the requirements for admissibility of chemical test results while ensuring that the test upon which the results are based is fairly administered. Salter v. Hjelle, 415 N.W.2d 801, 1987 N.D. LEXIS 438 (N.D. 1987).

The purpose of this section is to ease the requirements for admissibility of chemical test results while ensuring that the test upon which the results are based is fairly administered. State v. Schwalk, 430 N.W.2d 317, 1988 N.D. LEXIS 199 (N.D. 1988).

This section was designed to allow chemical results into evidence more easily while ensuring that the test performed has been fairly administered. Kummer v. Backes, 486 N.W.2d 252, 1992 N.D. LEXIS 140 (N.D. 1992).

State Required to Produce Nurse Who Drew Blood Sample at Trial.

Under N.D.R.Ev. 707, which was interpreted with N.D.C.C. § 39-20-07, the State was required to produce at trial the nurse who drew defendant’s blood sample as the signed statement contemplated by N.D.C.C. § 39-20-07(10) was a testimonial statement; thus, the individual who signed such a statement was a witness for confrontation purposes and defendant was entitled to be confronted with that individual at trial unless the individual was unavailable and defendant had a prior opportunity for cross-examination. However, Rule 707 did not require the State to produce the person who prepared the volatiles solution used during the chemical test or the mail carriers and evidence custodians involved in this matter at trial. State v. Lutz, 2012 ND 156, 820 N.W.2d 111, 2012 N.D. LEXIS 156 (N.D. 2012).

Subsequent Tests.
—Admissibility.

Where a valid test was entered into evidence which indicated a blood alcohol content of 0.10 percent during the two-hour period, a subsequent breath test indicating a lesser amount need not be further considered if the test on which the hearing officer is relying — the one indicating a blood alcohol content of 0.10 percent — was not challenged as invalid. Broeckel v. Moore, 498 N.W.2d 170, 1993 N.D. LEXIS 47 (N.D. 1993).

—Right to Refuse.

Once a motorist is in police custody and a chemical test has been properly administered yielding a readable result, the motorist has a right to refuse any subsequent chemical tests used for determining his or her blood alcohol content. Broeckel v. Moore, 498 N.W.2d 170, 1993 N.D. LEXIS 47 (N.D. 1993).

Testing Records and Reports.
—In General

The foundational elements for admission of a blood-alcohol test report into evidence can be demonstrated by properly completed and certified documents alone. State v. Jordheim, 508 N.W.2d 878, 1993 N.D. LEXIS 227 (N.D. 1993).

Copies of the official records, the analytical report, and the operational checklist did not have to be furnished to defendant before trial because they were properly admitted under this section, which authorizes the admission of these official records in lieu of the state toxicologist’s testimony describing the methods, devices, and operators that he has approved instead of N.D.R.Ev. 803(8). State v. Zimmerman, 516 N.W.2d 638, 1994 N.D. LEXIS 114 (N.D. 1994).

Appellate court overruled defendant’s assertion that the Intoxilyzer should be treated as a witness and examination of the source code should be a prerequisite for admission of the device’s testimony or test results, because defendant had the opportunity to cross-examine the director or an employee of the state crime laboratory who had been designated to speak to the accuracy of the test results, and defendant decided to plead guilty rather than to avail himself of the right to cross-examine the State Toxicologist. City of Fargo v. Levine, 2008 ND 64, 747 N.W.2d 130, 2008 N.D. LEXIS 72 (N.D. 2008).

—Content of Analytical Report.

While this section requires that percent by weight of alcohol in the blood shall be based upon grams of alcohol per one hundred cubic centimeters of blood, there is no statutory requirement that such language be incorporated into the analytical report. State v. Hanson, 345 N.W.2d 845, 1984 N.D. LEXIS 257 (N.D. 1984).

—Discontinued Form

Fact that the nurse who administered blood test filled out an outdated certification form prescribed by the state toxicologist, only later filling out the newer form, did not constitute sufficient evidence to rebut the presumption of regularity under subdivision 8 of this section, where the nurse testified that she had complied with all provisions of the revised form. State v. Vetsch, 368 N.W.2d 547, 1985 N.D. LEXIS 325 (N.D. 1985).

In a trial for driving while under the influence of intoxicating liquor, the results of a breathalyzer test were not rendered inadmissible by the administering officer’s use of a discontinued operational checklist, where the checklist was currently approved by the state toxicologist at the time of the arrest, and not substantively different from the form which replaced it. City of Williston v. Miller, 404 N.W.2d 50, 1987 N.D. LEXIS 300 (N.D. 1987).

—Form 104

Pursuant to this statutory scheme, the state toxicologist drafted Form 104 to be used when a blood sample is drawn for blood alcohol testing, and fair administration of the test may be established only through proof that the Form 104 methods for collection and preservation of the blood sample were scrupulously complied with or through expert testimony establishing the scientific accuracy of the test. State v. Schwalk, 430 N.W.2d 317, 1988 N.D. LEXIS 199 (N.D. 1988).

Form 104, used when a blood sample is drawn for alcohol testing, could be improved with the inclusion of a provision wherein the specimen collector certifies that he or she followed the directions and placed the properly drawn and sealed container in the regular mailing process, since absent such a written certification Form 104 does not on its face establish fair administration of the test, and the state must therefore do so by other evidence. State v. Schwalk, 430 N.W.2d 317, 1988 N.D. LEXIS 199 (N.D. 1988).

The trial court abused its discretion in granting a new trial where admission of an uncertified Form 104 was not shown to constitute any prejudice to the defendant; the state produced evidence that the blood test had been fairly administered and although the admitted Form 104 was not certified, the arresting officer testified that it came for the “cardboard vial” as part of the blood sample kit. There was no evidence, not even an allegation, that the form was inaccurate or contained something other than the state toxicologist’s directions for blood testing. State v. Steier, 515 N.W.2d 195, 1994 N.D. App. LEXIS 4 (N.D. Ct. App. 1994).

Trial court did not abuse its discretion in admitting the State’s Form 104 where, pursuant to N.D.C.C. § 39-20-07, defendant’s blood test was collected following the proper procedures set forth by the state toxicologist; the police officer’s testimony showed that defendant’s blood was properly obtained, and laid the foundation for the admission of Form 104. The testimony of the nurse who drew the blood from defendant was not necessary for admission of the form since the police officer observed the blood draw process and was available for cross-examination and the forensic scientist testified that the sample was properly preserved and was also available for cross-examination. State v. Friedt, 2007 ND 108, 735 N.W.2d 848, 2007 N.D. LEXIS 108 (N.D. 2007), overruled in part, State ex rel. Roseland v. Herauf, 2012 ND 151, 819 N.W.2d 546, 2012 N.D. LEXIS 161 (N.D. 2012).

Reviewing court overruled defendant’s assertion that the results of his blood-alcohol test were erroneously admitted in evidence since the approved procedures were not followed in obtaining the blood-alcohol test, because the testimony established the blood was properly obtained and laid the foundation for admission of Form 104; the blood specimen collector testified that his failure to check the box on Form 104 was an “oversight” and to his best recollection he did invert the tube several times after taking the blood sample because “in every blood draw we invert the tubes,” and the toxicologist testified the failure to include the time on the tube in addition to the Form 104 would not affect the results of the analysis. State v. Skarsgard, 2007 ND 160, 739 N.W.2d 786, 2007 N.D. LEXIS 166 (N.D. 2007).

Deputy’s detailed testimony of the steps he undertook to properly administer defendant’s blood test reflected the trial court’s conclusion that the scientific reliability or accuracy of the test was not compromised by the deputy’s failure to put his name on the Form 104. State v. Keller, 2013 ND 122, 833 N.W.2d 486, 2013 N.D. LEXIS 130 (N.D. 2013).

—Prima Facie Evidence.

Where the defendant failed to offer any rebutting evidence to refute the prima facie showing that his breath test was fair and accurate, the trial court did not err in admitting the certified copies of his breath alcohol test results. State v. Reil, 409 N.W.2d 99, 1987 N.D. LEXIS 359 (N.D. 1987).

In order for a test record to establish prima facie its resulting blood alcohol concentration, it must be accompanied by a certified copy of the checklist; without a checklist the test records are not prima facie evidence of their results. Salter v. Hjelle, 415 N.W.2d 801, 1987 N.D. LEXIS 438 (N.D. 1987).

Toxicologist’s Certificate.
—In General.

A certificate signed by the state toxicologist qualifying a police officer to administer Breathalyzer tests and certifying that the device meets the requirements of this section was not admissible where there was no compliance with requirements for authentication of the certificate. State v. Salhus, 220 N.W.2d 852, 1974 N.D. LEXIS 215 (N.D. 1974); State v. Ghylin, 222 N.W.2d 864, 1974 N.D. LEXIS 155 (N.D. 1974).

The legislative assembly intended to allow the state toxicologist to delegate authority to run the blood tests, and his certification of the copy of a report is sufficient to comply with subdivision 8 of this section. State v. Vande Hoven, 388 N.W.2d 857, 1986 N.D. LEXIS 324 (N.D. 1986).

The requirement that the copy be received by the commissioner “from a certified breath test operator” refers to the qualifications of the operator who administers the test; the requirement does not refer to who certifies the copy; the results of the test would not be admissible under this section if the operator was not certified. Frost v. North Dakota Dep't of Transp., 487 N.W.2d 6, 1992 N.D. LEXIS 114 (N.D. 1992).

A blood test accompanied by a signed report by the state toxicologist attesting to following proper testing procedures is prima facie evidence of the results of a chemical analysis. Broeckel v. Moore, 498 N.W.2d 170, 1993 N.D. LEXIS 47 (N.D. 1993).

District court erred in affirming a hearing officer’s decision suspending defendant’s driving privileges for driving under the influence of alcohol because, while the list of chemical test operators and the list of approved chemical testing devices were certified by the state toxicologist, the proper foundation for the Intoxilyzer test results was not laid where there was no evidence that the state toxicologist was a designee of the director of the state crime laboratory. Frank v. Dir., North Dakota DOT, 2014 ND 158, 849 N.W.2d 248, 2014 N.D. LEXIS 157 (N.D. 2014).

—Deputy State Toxicologist.

Where driver’s license was suspended for failing field sobriety test, deputy state toxicologist could lawfully certify device, method, and that operator had been approved by state toxicologist, to establish the foundation for admissibility of driver’s blood-test results in suspension hearing. Tabert v. North Dakota DOT, 1997 ND 39, 560 N.W.2d 883, 1997 N.D. LEXIS 59 (N.D. 1997).

—Effect of Certification.

For purposes of driving under the influence and actual physical control cases, certification by the state toxicologist specifically that the blood testing equipment in his laboratory is “in good working order,” is not required to establish the foundation of blood test results. Erickson v. Director, N.D. Dep't of Transp., 507 N.W.2d 537, 1993 N.D. LEXIS 199 (N.D. 1993).

Sworn statement by deputy state toxicologist collectively certifying that analysis of driver’s blood sample had been properly performed contained sufficient foundation for admissibility of blood-test, and suspension of driver’s license by hearing officer would be upheld, despite irrelevant and inadmissible foundational exhibits attached to collective certification. Tabert v. North Dakota DOT, 1997 ND 39, 560 N.W.2d 883, 1997 N.D. LEXIS 59 (N.D. 1997).

DECISIONS UNDER PRIOR LAW

Breathalyzer.

Where statute, before amendment, provided that a chemical testing method used for establishing intoxication had to be approved by the American Medical Association and the association did not provide such endorsement as a matter of policy, a Breathalyzer test given defendant was nevertheless admissible into evidence since the purpose of the legislative assembly to protect innocent parties from convictions due to unreliable tests had been otherwise fulfilled. State v. Miller, 146 N.W.2d 159, 1966 N.D. LEXIS 131 (N.D. 1966).

Delegation of Legislative Power.

Subsection (5) of this section constituted legislative approval of the Harger drunkometer, and it was only when it was sought to use another device approved by the American Medical Association and the national safety council that there might be a question as to invalid delegation of legislative power. McDonald v. Ferguson, 129 N.W.2d 348, 1964 N.D. LEXIS 109 (N.D. 1964) (Decided prior to 1965 amendment).

Collateral References.

Intoxication from specified percentages of alcohol present in system, construction and application of statutes creating presumption or other inference, 16 A.L.R.3d 748.

Admissibility and sufficiency of extrapolation evidence in DUI prosecutions, 119 A.L.R.5th 379.

Law Reviews.

North Dakota Supreme Court Review (Henderson v. Director, N.D. Department of Transportation, 2002 ND 44, P 1, 640 N.W.2d 714), see 79 N. Dak. L. Rev. 589 (2003).

Toward a Coordinated Judicial View of the Accuracy of Breath Testing Devices, 59 N.D. L. Rev. 329 (1983).

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

39-20-08. Proof of refusal admissible in any civil or criminal action or proceeding.

If the person under arrest refuses to submit to the test or tests, proof of refusal is admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor, drugs, or a combination thereof.

Source:

S.L. 1959, ch. 286, § 8; 1983, ch. 415, § 30; 1983, ch. 444, § 6.

Notes to Decisions

Admission of Evidence.

In a criminal DUI case, the trial court properly admitted evidence of defendant’s refusal to submit to a blood alcohol test pursuant to this section, because the section explicitly permits evidence of a defendant’s refusal to submit to a blood alcohol test in either a civil or criminal action or proceeding which arises out of acts alleged to have been committed while the person was driving while under the influence. West Fargo v. Maring, 458 N.W.2d 318, 1990 N.D. LEXIS 141 (N.D. 1990).

A driver has only a conditional right to refuse a chemical test; among the conditions imposed upon the exercise of one’s right to refuse a chemical test are the revocation of the person’s license or permit to drive or vehicle and the admission in evidence of proof of refusal in civil or criminal actions. State v. Murphy, 527 N.W.2d 254, 1995 N.D. LEXIS 16 (N.D. 1995).

Factor to Be Considered.

In prosecution for driving under the influence of intoxicating liquor, evidence regarding the fact that a chemical test for intoxication was refused to be taken by the defendant was not sufficient, standing alone and by itself, to establish the guilt of the defendant, but was a fact which, if proven, could be considered in the light of all other proven facts in deciding the question of guilt or innocence. State v. Murphy, 516 N.W.2d 285, 1994 N.D. LEXIS 112 (N.D. 1994).

Failure to Provide Miranda Warnings.

In criminal prosecutions for driving or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor, if the defendant was not given the Miranda warnings, this section must be literally and narrowly construed to make only the fact of refusal, not the defendant’s statements of refusal, admissible in evidence. State v. Beaton, 516 N.W.2d 645, 1994 N.D. LEXIS 113 (N.D. 1994).

Legislative Intent.

The legislative intent was to admit evidence of any refusal to submit to the blood alcohol testing in cases where a person has been driving while in actual physical control of the vehicle upon a public highway or while under the influence of intoxicating liquor or drugs or any combination thereof. West Fargo v. Maring, 458 N.W.2d 318, 1990 N.D. LEXIS 141 (N.D. 1990).

Limitations on Direct Examination.

In criminal prosecutions for driving or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor, if the defendant was not given the Miranda warnings, any questions on direct examination regarding refusal to take a chemical test must be limited to the fact of refusal. State v. Satrom, 524 N.W.2d 92, 1994 N.D. LEXIS 238 (N.D. 1994).

DECISIONS UNDER PRIOR LAW

Refusal to Submit to Test.

A provision in the former statute authorizing the introduction into evidence of the results of chemical tests of the body fluids of a defendant and providing that the defendant was not required to submit to a test without his consent implied that, where defendant had not testified, testimony of his refusal to submit to a test could not be received in evidence against him. State v. Severson, 75 N.W.2d 316 (N.D. 1956), decided prior to the enactment of N.D.C.C. § 39-20-08.

Law Reviews.

Criminal Law — Accusatory Stage of Proceedings — Custody Test Requires Miranda Warnings after DWI Arrest, 57 N.D. L. Rev. 541 (1981).

Automobiles — Refusals of Test, Admissibility: North Dakota’s Privilege Against Self-Incrimination as Applied to a Refusal to Submit to a Blood Alcohol Test, 71 N.D. L. Rev. 821 (1995).

Summary of North Dakota Supreme Court Decisions on Criminal Law — Admissibility of Refusal Evidence, 71 N.D. L. Rev. 841 (1995).

Summary of North Dakota Supreme Court Decisions on Criminal Law — Self-Incrimination, 71 N.D. L. Rev. 841 (1995).

39-20-09. Effect of evidence of chemical test.

This chapter does not limit the introduction of any other competent evidence bearing on the question of whether the person was under the influence of intoxicating liquor, drugs, or a combination thereof, but, if the test results show an alcohol concentration of at least eight one-hundredths of one percent or, with respect to a person under twenty-one years of age, an alcohol concentration of at least two one-hundredths of one percent by weight, the purpose of such evidence must be limited to the issues of probable cause, whether an arrest was made prior to the administering of the test, and the validity of the test results.

Source:

S.L. 1959, ch. 286, § 9; 1983, ch. 415, § 31; 1983, ch. 444, § 7; 1993, ch. 387, § 7; 1997, ch. 334, § 8; 2003, ch. 316, § 8.

Notes to Decisions

Opinion of Officer.

Although the opinion of the arresting officer is not itself sufficient to sustain a conviction of driving under the influence, the officer’s observation of various physical difficulties of the driver constituted reasonable cause to believe that the offense of driving under the influence had been committed. State v. Salhus, 220 N.W.2d 852, 1974 N.D. LEXIS 215 (N.D. 1974).

39-20-10. Notice to other states.

When it has been finally determined under the procedures of this chapter that a nonresident’s privilege to operate a motor vehicle in this state has been revoked or denied, the director shall give information in writing of the action taken to the official in charge of traffic control or public safety of the state of the person’s residence and of any state in which the person has a license.

Source:

S.L. 1959, ch. 286, § 10.

39-20-11. Application to prosecutions under municipal ordinances.

The provisions of this chapter also apply to prosecutions for the violation of municipal ordinances prohibiting the driving or control of a motor vehicle while under the influence of intoxicating liquor, drugs, or a combination thereof.

Source:

S.L. 1959, ch. 286, § 11; 1983, ch. 444, § 8.

39-20-12. Liability.

Any individual medically qualified to draw blood or any licensed physician, nurse, technician, or an employee of a hospital who draws blood from any person pursuant to a request of any arresting officer is not liable in any civil action for damages arising out of said act except for gross negligence.

Source:

S.L. 1961, ch. 269, § 4; 1987, ch. 73, § 24; 1999, ch. 358, § 9.

39-20-13. State crime laboratory to examine specimens of fatalities in accidental deaths involving a motor vehicle — Record use.

In cases of death resulting from a motor vehicle accident or other unnatural death occurring in a motor vehicle, the county coroner shall require that specimens of blood, urine, and vitreous humor be withdrawn from the body of the decedent within twenty-four hours after the decedent’s death by a coroner, coroner’s physician, or other qualified person, prior to embalming. The specimens must be collected and preserved by methods and techniques established by the director of the state crime laboratory or the director’s designee. The specimens so drawn must be sent to the director of the state crime laboratory or the director’s designee for analysis for alcohol, carbon monoxide, and other drug content. The director of the state crime laboratory or the director’s designee shall keep a record of all such examinations to be used for statistical purposes. The records must be made available to the director for use by the national highway traffic safety administration in analyzing fatal accidents. The information in the possession of the director may be obtained from the director of the state crime laboratory or the director’s designee only as provided in this section. Except as provided, the results of the examinations referred to in this section must be used only for statistical purposes, except that the results must be released upon the issuance of a subpoena duces tecum by a court of competent jurisdiction in any civil or criminal action. The cumulative results of the examinations, without identifying the individuals involved, must be disseminated to interested state and local officials and made public by the director of the state crime laboratory or the director’s designee. Any person drawing the specimens and any person making any examination under the terms of this section are immune from all liability, civil or criminal, that might otherwise be incurred or imposed.

Source:

S.L. 1969, ch. 359, § 1; 1973, ch. 314, § 1; 1985, ch. 429, § 20; 1985, ch. 443, § 1; 2005, ch. 195, § 21.

39-20-14. Screening tests.

  1. Any individual who operates a motor vehicle upon the public highways of this state is deemed to have given consent to submit to an onsite screening test or tests of the individual’s breath for the purpose of estimating the alcohol concentration in the individual’s breath upon the request of a law enforcement officer who has reason to believe that the individual committed a moving traffic violation or a violation under section 39-08-01 or an equivalent offense, or was involved in a traffic accident as a driver, and in conjunction with the violation or the accident the officer has, through the officer’s observations, formulated an opinion that the individual’s body contains alcohol.
  2. An individual may not be required to submit to a screening test or tests of breath while at a hospital as a patient if the medical practitioner in immediate charge of the individual’s case is not first notified of the proposal to make the requirement, or objects to the test or tests on the ground that such would be prejudicial to the proper care or treatment of the patient.
  3. The screening test or tests must be performed by an enforcement officer certified as a chemical test operator by the director of the state crime laboratory or the director’s designee and according to methods and with devices approved by the director of the state crime laboratory or the director’s designee. The results of such screening test must be used only for determining whether or not a further test shall be given under the provisions of section 39-20-01. The officer shall inform the individual that North Dakota law requires the individual to take the screening test to determine whether the individual is under the influence of alcohol and that refusal of the individual to submit to a screening test may result in a revocation for at least one hundred eighty days and up to three years of that individual’s driving privileges. If such individual refuses to submit to such screening test or tests, none may be given, but such refusal is admissible in a court proceeding if the individual was arrested in violation of section 39-08-01 and did not take any additional chemical tests requested by the law enforcement officer. Such refusal is sufficient cause to revoke such individual’s license or permit to drive in the same manner as provided in section 39-20-04, and a hearing as provided in section 39-20-05 and a judicial review as provided in section 39-20-06 must be available.
  4. The director must not revoke an individual’s driving privileges for refusing to submit to a screening test requested under this section if the individual provides a sufficient breath, blood, or urine sample for a chemical test requested under section 39-20-01 for the same incident.
  5. No provisions of this section may supersede any provisions of chapter 39-20, nor may any provision of chapter 39-20 be construed to supersede this section except as provided herein.
  6. For the purposes of this section, “chemical test operator” means an individual certified by the director of the state crime laboratory or the director’s designee as qualified to perform analysis for alcohol in an individual’s blood, breath, or urine.

Source:

S.L. 1971, ch. 383, § 1; 1973, ch. 315, § 1; 1977, ch. 367, § 1; 1983, ch. 415, § 32; 1985, ch. 429, § 21; 1989, ch. 479, § 3; 2005, ch. 195, § 22; 2007, ch. 325, § 6; 2011, ch. 288, § 19; 2013, ch. 301, § 20; 2017, ch. 268, § 8, effective August 1, 2017; 2019, ch. 322, § 4, effective August 1, 2019.

Notes to Decisions

Admissibility.

Admission of the alcohol level evaluation roadside tester chemical screening test evidence is precluded by this section when probable cause for arresting the defendant is not an issue at trial. State v. Schimmel, 409 N.W.2d 335, 1987 N.D. LEXIS 345 (N.D. 1987).

If probable cause to arrest is not at issue at trial, the result of the Alcohol Level Evaluation Roadside Tester (A.L.E.R.T.) test is inadmissible. City of Fargo v. Ruether, 490 N.W.2d 481, 1992 N.D. LEXIS 200 (N.D. 1992).

Where the defendant conceded the arresting officer had probable cause to arrest him for driving under the influence, evidence that the defendant consented to take the A.L.E.R.T. test and a breath test was irrelevant and inadmissible. City of Fargo v. Erickson, 1999 ND 145, 598 N.W.2d 787, 1999 N.D. LEXIS 165 (N.D. 1999).

Implied consent statute, N.D.C.C. § 39-20-14, was not coercive in the context of pre-arrest onsite screening tests as there was no logical difference between being advised of the consequences of refusal of a pre-arrest onsite screening test and a post-arrest chemical test in terms of determining voluntariness of consent. State v. Nagel, 2014 ND 224, 857 N.W.2d 374, 2014 N.D. LEXIS 236 (N.D. 2014).

District court did not err in denying defendant's motion to suppress the results of the pre-arrest onsite screening test where sufficient competent evidence supported the decision that defendant voluntarily consented to the test. State v. Nagel, 2014 ND 224, 857 N.W.2d 374, 2014 N.D. LEXIS 236 (N.D. 2014).

Defendant was not coerced to take a pre-arrest onsite screening test by the implied consent advisory where case law recognized that a driver could change his mind, and there was no dispute that defendant eventually agreed to take the onsite screening test, thereby curing his prior refusal. State v. Nagel, 2014 ND 224, 857 N.W.2d 374, 2014 N.D. LEXIS 236 (N.D. 2014).

District court erred in denying defendant's motion for a mistrial after the admission of the preliminary breath test because the disclosure of the preliminary breath test result violated the legislative directive contained in the statute at issue where the trial did not include a challenge of probable cause to arrest, there was no admission against interest exception to the hearsay rule in the statute, the result was inadmissible regardless of who stated or offered the result, and the disclosure of the test result was admitted through the video of the traffic stop, the implication that defendant had failed the test through the questioning of the arresting officer, and the jury's specific question regarding the preliminary breath test. State v. Rende, 2018 ND 33, 905 N.W.2d 909, 2018 N.D. LEXIS 33 (N.D. 2018).

Affirmative Refusal.

N.D.C.C. § 39-20-04 specifies that if a person refuses to submit to testing under N.D.C.C. § 39-20-01 or this section, none shall be given. This language requires an affirmative refusal to take the test. State v. Solberg, 381 N.W.2d 197, 1986 N.D. LEXIS 255 (N.D. 1986).

Alco-Sensor.

The Alco-Sensor is a device for providing an on-site screening test of the person’s breath for the purpose of estimating the alcohol content of the person’s blood. Nichols v. Backes, 461 N.W.2d 113, 1990 N.D. LEXIS 199 (N.D. 1990).

Certification.

There is no provision in this section that an officer requesting the on-site screening test must be certified to administer the test; this section only requires that the officer administering the test must be certified. Therefore, revocation of a driver’s license for 1 year was appropriate for a refusal because an argument that an officer who was not certified as a chemical test operator was unauthorized to request that the driver submit to such was rejected. YellowBird v. N.D. DOT, 2013 ND 131, 833 N.W.2d 536, 2013 N.D. LEXIS 136 (N.D. 2013).

Construction.

All of the subsections are unambiguously referring to the same test, regardless of whether it is referred to as an onsite screening test as provided in N.D.C.C. § 39-20-14(1) or the six subsequent references to just screening test in the following subsections; § 39-20-14(2) is not written as an exception to screening tests only being allowed at the location of the traffic stop, but places limitations on screening tests at a particular location away from the location of the stop. Schulke v. Panos, 2020 ND 53, 940 N.W.2d 303, 2020 N.D. LEXIS 52 (N.D. 2020).

Court can reconcile N.D.C.C. § 39-20-14(1) and (2) by interpreting § 39-20-14(1) as establishing that drivers are deemed to have provided consent to submit to a screening test when the driver commits a traffic offense or is involved in an accident and, in conjunction with the traffic violation or accident, law enforcement formulates an opinion the driver’s body contains alcohol. In order to give effect to § 39-20-14(2), the court cannot interpret § 39-20-14(1) as requiring the screening test to be conducted at the location of the stop. Schulke v. Panos, 2020 ND 53, 940 N.W.2d 303, 2020 N.D. LEXIS 52 (N.D. 2020).

It would be inconsistent to hold the screening test in N.D.C.C. § 39-20-14(3) is limited to the location of the traffic stop when the required advisory does not include any such limitation. Schulke v. Panos, 2020 ND 53, 940 N.W.2d 303, 2020 N.D. LEXIS 52 (N.D. 2020).

Construction with Other Laws.

There is no conflict between N.D.C.C. § 39-20-01 and this section that requires an arrest to precede an on-site screening test. State v. Woytassek, 491 N.W.2d 709, 1992 N.D. LEXIS 217 (N.D. 1992).

Although N.D.C.C. § 39-20-14(4) provides an individual's driving privileges must not be revoked for refusing to submit to a screening test if the individual provides a sufficient breath, blood, or urine sample for a chemical test requested under N.D.C.C. § 39-20-01 for the same incident, there is no corresponding language that the driver must be so informed for purposes of the administrative revocation proceeding. Castillo v. Levi, 2016 ND 253, 888 N.W.2d 190, 2016 N.D. LEXIS 250 (N.D. 2016).

Evidence.

In a trial for driving with a blood-alcohol concentration of at least .10%, the admission into evidence of an on-site chemical screening test was harmless error, where in light of two blood-alcohol tests presented to the jury, the prejudicial effect of the screening test was negligible. State v. Schimmel, 409 N.W.2d 335, 1987 N.D. LEXIS 345 (N.D. 1987).

There was sufficient evidence to support defendant's conviction for refusal to submit to an onsite screening test. The jury could have reasonably inferred that the arresting officer, through his observations, formulated an opinion that defendant's body contained alcohol. State v. Guttormson, 2015 ND 235, 869 N.W.2d 737, 2015 N.D. LEXIS 246 (N.D. 2015), cert. denied, 577 U.S. 1141, 136 S. Ct. 1192, 194 L. Ed. 2d 181, 2016 U.S. LEXIS 1339 (U.S. 2016).

Purpose of Test.

Purpose of an on-site chemical screening test is to ensure that sufficient probable cause exists to warrant an arrest for driving while under the influence of alcohol. Asbridge v. North Dakota State Highway Comm'r, 291 N.W.2d 739, 1980 N.D. LEXIS 235 (N.D. 1980).

The only permissible purpose for using the results of an on-site chemical screening test is to determine whether or not a further test should be given. State v. Schimmel, 409 N.W.2d 335, 1987 N.D. LEXIS 345 (N.D. 1987).

The sole purpose of an on-site screening test is to assist the law enforcement officer in deciding whether there are reasonable grounds to arrest an individual for driving under the influence of intoxicating liquor. Nichols v. Backes, 461 N.W.2d 113, 1990 N.D. LEXIS 199 (N.D. 1990).

The purpose of an on-site chemical screening test, such as the Alco-Sensor test, is to ensure that sufficient probable cause exists to warrant an arrest. State v. Woytassek, 491 N.W.2d 709, 1992 N.D. LEXIS 217 (N.D. 1992).

Reasonable Grounds.

Where defendant had odor of alcohol on his breath, had bloodshot eyes, stated that he had been drinking, and registered a “fail” on an Alco-Sensor test performed in accordance with the state toxicologist’s approved method, those facts were sufficient to warrant a person of reasonable caution in believing that an offense had been or was being committed, and the officer had reasonable grounds to believe that plaintiff had been driving a vehicle in violation of N.D.C.C. § 39-08-01. Nichols v. Backes, 461 N.W.2d 113, 1990 N.D. LEXIS 199 (N.D. 1990).

Where officer pulled defendant’s vehicle over because he suspected the driver was impaired after the vehicle swerved in its own lane, crossed the center line once, and nearly struck a curb, these circumstances provided a sufficient basis to create a reasonable and articulable suspicion that defendant was violating the law; therefore, the trial court did not err in denying defendant’s motions to dismiss and suppress subsequent breath test based upon the investigative stop. State v. Woytassek, 491 N.W.2d 709, 1992 N.D. LEXIS 217 (N.D. 1992).

Erratic driving, combined with the indicia of intoxication, gave a deputy reason to believe defendant was driving while under the influence of liquor or drugs, and since the deputy formed this opinion prior to administering the Alco-Sensor test, he complied with this section. State v. Woytassek, 491 N.W.2d 709, 1992 N.D. LEXIS 217 (N.D. 1992).

North Dakota Department of Transportation (DOT) erred by suspending appellant’s driving privileges, because the officer’s report and notice to the Director of the DOT was deficient under N.D.C.C. § 39-20-04 as the officer failed to indicate his belief that appellant’s body contained alcohol. The officer must first form the opinion that the person’s body contains alcohol before the implied consent provision applies under N.D.C.C. § 39-20-14. Morrow v. Ziegler, 2013 ND 28, 826 N.W.2d 912, 2013 N.D. LEXIS 31 (N.D. 2013).

Law enforcement officer may request an onsite screening test of a driver's breath based on reasonable suspicion the driver was driving while impaired; a warrantless pre-arrest onsite screening test of an individual's breath implicates a similar lack of intrusiveness as a breath test incident to an arrest and serves the purpose of providing additional evidence about impairment before necessitating or negating the need for a subsequent arrest. Barrios-Flores v. Levi, 2017 ND 117, 894 N.W.2d 888, 2017 N.D. LEXIS 128 (N.D. 2017).

Statute requires reasonable suspicion of driving under the influence before a law enforcement officer may request a driver to submit to a pre-arrest warrantless onsite screening test of an individual's breath and a driver's license may be revoked for refusing a test based upon the officer's reasonable suspicion; a pre-arrest warrantless onsite screening test of an individual's breath based on reasonable suspicion the individual was driving while impaired does not violate the constitution. Barrios-Flores v. Levi, 2017 ND 117, 894 N.W.2d 888, 2017 N.D. LEXIS 128 (N.D. 2017).

District court properly affirmed the Department of Transportation's suspension of a driver's driving privileges for 180 days because police officers did not have to inform the driver of his right to remedy his refusal to submit to a chemical test in order for the Department to suspend his license, the Department's report and notice form, which was admitted without an objection on hearsay grounds, provided sufficient evidence to support the police officer's request for an onsite screening test, all of the driver's constitutional claims had previously been rejected, and he failed to show how North Dakota's Constitution provided greater protection than the Fourth Amendment. Marman v. Levi, 2017 ND 133, 896 N.W.2d 241, 2017 N.D. LEXIS 133 (N.D. 2017).

District court did not err in refusing to give defendant’s requested jury instruction under subsection (1) because he failed to raise the requirements for the initial traffic stop in an appropriate pretrial motion and thus, waived the issue; the failure to charge defendant with refusing to submit to an onsite screening test was irrelevant to the validity of the stop, which turned on whether the officer had an articulable and reasonable suspicion he was violating the law for failure to stop. State v. Taylor, 2018 ND 132, 911 N.W.2d 905, 2018 N.D. LEXIS 147 (N.D. 2018).

Refusal.

As a matter of law, defendant’s consent to a blood test was not per se involuntary or coerced because the deputy advised defendant of the implied consent law, which criminalizes refusal. State v. Boehm, 2014 ND 154, 849 N.W.2d 239, 2014 N.D. LEXIS 158 (N.D. 2014).

Whether a driver declining to submit to a screening test that has been requested under unusual circumstances constitutes a refusal should remain a question of fact. Schulke v. Panos, 2020 ND 53, 940 N.W.2d 303, 2020 N.D. LEXIS 52 (N.D. 2020).

Appellee had already been placed under arrest for other crimes, had been transported to the correctional facility, and the arresting officer did not conduct his preliminary investigation of appellee’s potential alcohol violation at the location of the stop because of safety concerns; under the circumstances of this case, the factual finding that he refused the screening test at a location other than the location of the traffic stop was supported by a preponderance of the evidence. Schulke v. Panos, 2020 ND 53, 940 N.W.2d 303, 2020 N.D. LEXIS 52 (N.D. 2020).

—Not Cured by Blood Test.

Officer was not required to accept independent blood test as a cure for driver’s refusal to submit to an on-site chemical screening test where officer did not arrest driver, because the legislature clearly did not authorize a driver to cure a refusal of on-site screening if he was not arrested. Scott v. North Dakota DOT, 557 N.W.2d 385, 1996 N.D. LEXIS 277 (N.D. 1996).

Revocation of License.

Where both prerequisites to a police officer’s request that a defendant submit to an on-site screening test were found: a moving traffic violation by defendant, and the officer’s opinion, formulated through personal observation, that a defendant’s body contained alcohol, and where defendant refused to submit to other blood alcohol tests, revocation of defendant’s license was proper. Jorgenson v. North Dakota Dep't of Transp., 498 N.W.2d 167, 1993 N.D. LEXIS 48 (N.D. 1993).

Motorist’s refusal to submit to an onsite screening test pursuant to N.D.C.C. § 39-20-14 justified revocation of motorist’s license, as described in N.D.C.C. § 39-20-04(1)(a). Wetsch v. N.D. DOT, 2004 ND 93, 679 N.W.2d 282, 2004 N.D. LEXIS 192 (N.D. 2004).

Department of Transportation properly revoked a driver's driving privilege for refusal to submit to an onsite screening test of his breath because a law enforcement officer had a reasonable suspicion he was driving while impaired; the officer observed the driver's vehicle speeding and initiated a traffic stop, the driver had bloodshot watery eyes, and he admitted he had a couple of beers. Barrios-Flores v. Levi, 2017 ND 117, 894 N.W.2d 888, 2017 N.D. LEXIS 128 (N.D. 2017).

District court properly affirmed the Department of Transportation’s revocation of a driver’s license for two years because the hearing officer had sufficient statutory grounds to do so where, but for the driver’s deliberate action in refusing to submit to an on-site screening test, a test would have been given and foundational documentation of the test’s compliance with approved methods would have been available. Along v. Dir. N.D. DOT, 2018 ND 261, 920 N.W.2d 491, 2018 N.D. LEXIS 265 (N.D. 2018).

District court erred in reversing an ALJ’s decision revoking a licensee’s driving privileges for 180 days for refusal to take an onsite screening test because, even if defendant’s limited right to counsel was violated after his arrest, he had no right to counsel prior to arrest when he refused to take the test, and he did not properly cure his refusal. Jesser v. N.D. DOT, 2019 ND 287, 936 N.W.2d 102, 2019 N.D. LEXIS 295 (N.D. 2019).

Test Method.

The operating procedure on the back side of an Alco-Sensor device is merely an additional approved method that warrants consideration of Alco-Sensor test results. Thus, the operating procedure on the back side of an Alco-Sensor device is irrelevant in a case in which the law enforcement officer’s testimony shows that in administering the Alco-Sensor test he followed the approved method prescribed by the state toxicologist. Nichols v. Backes, 461 N.W.2d 113, 1990 N.D. LEXIS 199 (N.D. 1990).

Where officer’s testimony established that he performed an Alco-Sensor test according to the method approved by the state toxicologist, the hearing officer did not err in considering the results of the Alco-Sensor test in determining whether the officer had reasonable grounds to believe that defendant had been driving vehicle in violation of N.D.C.C. § 39-08-01. Nichols v. Backes, 461 N.W.2d 113, 1990 N.D. LEXIS 199 (N.D. 1990).

Collateral References.

Validity, construction, and application of statutes directly proscribing driving with blood-alcohol level in excess of established percentage, 54 A.L.R.4th 149.

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

39-20-15. Restricted license upon twenty-four seven sobriety program participation.

Any driver suspended under this chapter may elect to participate in the twenty-four seven sobriety program under chapter 54-12. The director may issue a temporary restricted license that takes effect after fourteen days of the suspension have been served provided that the driver is not subject to any unrelated suspension. Notwithstanding any other provision of law, an individual may not receive a temporary restricted operator’s license until after fourteen days after the administrative hearing on the offense under this chapter has been waived or held, or after fourteen days of the final appeal, whichever is longer.

Source:

S.L. 2013, ch. 301, § 21; 2015, ch. 268, § 12, effective April 15, 2015.

Effective Date.

The 2015 amendment of this section by section 12 of chapter 268, S.L. 2015 became effective April 15, 2015, pursuant to an emergency clause in section 15 of chapter 268, S.L. 2015.

CHAPTER 39-21 Equipment of Vehicles

39-21-01. When lighted lamps are required.

Subject to the exceptions for parked vehicles, every vehicle upon a highway within this state must display lighted headlamps, taillamps, and illuminating devices as required in this chapter for different classes of vehicles as follows:

  1. At any time from sunset to sunrise, and every farm tractor upon a highway within this state at any time from a half hour after sunset to a half hour before sunrise;
  2. At any time when it is raining, snowing, sleeting, or hailing or during other adverse driving conditions and these conditions do not render a person or vehicle on the highway clearly discernible at a distance of one thousand feet [304.8 meters] ahead; or
  3. At any other time when visibility is impaired by weather, smoke, fog, or other conditions, or when there is insufficient light to render a person or vehicle on the highway clearly discernible at a distance of one thousand feet [304.8 meters] ahead.

Stoplights, turn signals, and other signaling devices must be lighted as prescribed for the use of these devices.

Source:

S.L. 1963, ch. 283, § 19; 1965, ch. 282, § 1; 1979, ch. 418, § 5; 1979, ch. 430, § 1; 1979, ch. 431, § 1; 1987, ch. 464, § 3; 1993, ch. 395, § 1; 2011, ch. 289, § 1.

Notes to Decisions

Investigatory Stop.

Defendant’s violation of this section by traveling for a short distance of time without headlights on at night was a sufficient reason for officer to conduct an investigatory stop of his vehicle. State v. Stadsvold, 456 N.W.2d 295, 1990 N.D. LEXIS 126 (N.D. 1990).

Collateral References.

Driving motor vehicle without lights or with improper lights as affecting liability for collision, 62 A.L.R.3d 560, 62 A.L.R.3d 771, 62 A.L.R.3d 844.

Driving motor vehicle without lights or with improper lights as gross negligence or the like warranting recovery by guest under guest statute or similar common-law rule, 21 A.L.R.2d 209.

Liability or recovery in automobile negligence action as affected by absence or insufficiency of lights on parked or standing motor vehicle, 61 A.L.R.3d 13.

Liability or recovery in automobile negligence action arising out of collision or upset as affected by operation of vehicle without front lights, or with improper front lights, 62 A.L.R.3d 560.

Liability or recovery in automobile negligence action arising out of collision or upset as affected by operation of vehicle without or with improper taillights or rear reflectors, 62 A.L.R.3d 771.

Liability or recovery in automobile negligence action arising out of collision or upset as affected by operation of vehicle without, or with improper, clearance, load, or similar auxiliary lights, 62 A.L.R.3d 844.

39-21-02. Visibility distance and mounted height of lamps.

  1. Whenever requirement is hereinafter declared as to distance from which certain lamps and devices must render objects visible or within which such lamps or devices must be visible, said provisions apply during the times stated in section 39-21-01 in respect to a vehicle without load when upon a straight, level, unlighted highway under normal atmospheric conditions unless a different time or condition is expressly stated.
  2. Whenever requirement is hereinafter declared as to the mounted height of lamps or devices it means from the center of such lamp or device to the level ground upon which the vehicle stands when such vehicle is without a load.

Source:

S.L. 1963, ch. 283, § 19.

39-21-03. Headlamps on motor vehicle.

  1. Every motor vehicle must be equipped with at least two headlamps with at least one on each side of the front of the motor vehicle, which headlamps must comply with the requirements and limitations set forth in this chapter.
  2. Every headlamp upon every motor vehicle must be located at a height measured from the center of the headlamp of not more than fifty-four inches [137.16 centimeters] nor less than twenty-four inches [60.96 centimeters] to be measured as set forth in subsection 2 of section 39-21-02.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 2.

Notes to Decisions

Probable Cause.

Traffic violation observed by the officer, driving with only one functioning headlight, provided probable cause for stopping vehicle prior to the defendant’s reaching checkpoint. Wheeling v. Director of N.D. DOT, 1997 ND 193, 569 N.W.2d 273, 1997 N.D. LEXIS 239 (N.D. 1997).

DECISIONS UNDER PRIOR LAW

Effect of Noncompliance.

A plaintiff’s failure to have the lights required by former statute was sufficient evidence of contributory negligence to prevent his recovery. Rebillard v. Minneapolis, S. P. & S. S. M. R. Co., 216 F. 503, 1914 U.S. App. LEXIS 1364 (8th Cir. N.D. 1914), Rebillard v. Minneapolis, S. P. & S. S. M. R. Co., 216 F. 503, 1914 U.S. App. LEXIS 1364 (8th Cir. N.D. 1914).

Negligence of Guest in Car.

Noncompliance with statute providing that a car must have lights does not amount to contributory negligence on the part of a guest riding in car. Chambers v. Minneapolis, S. P. & S. S. M. Ry., 37 N.D. 377, 163 N.W. 824, 1917 N.D. LEXIS 91 (N.D. 1917).

39-21-04. Taillamps.

  1. Every motor vehicle, trailer, semitrailer and pole trailer, and any other vehicle which is being drawn at the end of a train of vehicles, must be equipped with at least one taillamp mounted on the rear, which, when lighted as hereinbefore required, must emit a red light plainly visible from a distance of one thousand feet [304.8 meters] to the rear, provided that in the case of a train of vehicles only the taillamp on the rearmost vehicle need actually be seen from the distance specified. Every such above-mentioned vehicle, other than a truck tractor, registered in this state and manufactured or assembled after January 1, 1964, must be equipped with at least two taillamps mounted on the rear, on the same level and as widely spaced laterally as practicable, which, when lighted as herein required, comply with the provisions of this section.
  2. Every taillamp upon every vehicle must be located at a height of not more than seventy-two inches [182.88 centimeters] nor less than fifteen inches [38.1 centimeters].
  3. Either a taillamp or a separate lamp must be so constructed and placed as to illuminate with a white light the rear registration plate and render it clearly legible from a distance of fifty feet [15.24 meters] to the rear. Any taillamp or taillamps, together with any separate lamp for illuminating the rear registration plate, must be so wired as to be lighted whenever the headlamps or auxiliary driving lamps are lighted.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 3.

Collateral References.

Liability of motorist colliding with person engaged about stalled or disabled vehicle on or near highway, 27 A.L.R.3d 12.

Lack or insufficiency of parking lights, contributory negligence, 61 A.L.R.3d 13.

Failure to dim or deflect lights on parked vehicle, contributory negligence, 63 A.L.R.3d 824.

Notes to Decisions

Reasonable Suspicion.

Trial court’s finding that defendant’s license plate was not illuminated was contrary to the manifest weight of the evidence and the officer’s mistake of fact regarding whether the rear license plate was properly illuminated was objectively unreasonable; a video showed that the license plate was properly illuminated, and the mistake of fact would have had to persist from the initial contact with defendant through the length of the stop. State v. Boger, 2021 ND 152, 963 N.W.2d 742, 2021 N.D. LEXIS 157 (N.D. 2021).

39-21-05. New motor vehicle to be equipped with reflectors.

  1. Every new motor vehicle hereafter sold and operated upon a highway other than a truck tractor must carry on the rear, either as a part of the taillamps or separately, two or more red reflectors, meeting the requirements of this section, except that vehicles of the type mentioned in section 39-21-08 must be equipped with reflectors as required in applicable sections.
  2. Every such reflector must be mounted on the vehicle at a height not less than fifteen inches [38.1 centimeters] nor more than sixty inches [152.4 centimeters] measured as set forth in subsection 2 of section 39-21-02, and must be of size and characteristics and so mounted as to be visible as required in section 39-21-11.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 4.

39-21-06. Stop lamps and turn signals required on new motor vehicle.

  1. A person may not sell, offer for sale, or operate on the highways any motor vehicle registered in this state and manufactured or assembled after January 1, 1964, unless it is equipped with at least two stop lamps that are in good working order when lighted, are mounted on the rear on the same level and as widely spaced laterally as practicable, and meet the requirements of section 39-21-19 and this section, except that a truck tractor manufactured or assembled after January 1, 1964, must be equipped with at least one stop lamp meeting the requirements of section 39-21-19.
  2. A person may not sell, offer for sale, or operate on the highways any motor vehicle, trailer, or semitrailer registered in this state and manufactured or assembled after January 1, 1952, unless it is equipped with electrical turn signals in good working order which meet the requirements of section 39-21-19. This subsection does not apply to any trailer or semitrailer of less than three thousand pounds [1360.78 kilograms] gross weight.
  3. A stop lamp on a vehicle must be located at a height of not more than seventy-two inches [182.88 centimeters] nor less than fifteen inches [38.10 centimeters] from the ground.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 5; 2013, ch. 308, § 1.

Notes to Decisions

Duty to Signal.

The trial court erroneously refused requested instruction on the duty of a driver to appropriately signal a sudden stop or decrease in speed. Although the trial court gave an instruction on brake lights which encompassed this section and N.D.C.C. § 39-21-19(1), and, although the trial court instructed that ordinary care was required in operating a motor vehicle, it did not instruct on the duty to signal before a stop, as requested. While the violation of a statutory duty is not negligence per se, it is evidence of negligence. Gronneberg v. Hoffart, 466 N.W.2d 809, 1991 N.D. LEXIS 42 (N.D. 1991).

Sudden Emergency Doctrine.

Application of the sudden emergency doctrine is well-settled. Gronneberg v. Hoffart, 466 N.W.2d 809, 1991 N.D. LEXIS 42 (N.D. 1991).

Where there was evidence that a “sudden emergency” arose when defendant braked unexpectedly to avoid hitting the pickup that he was following, but gave no warning of his sudden stop, the trial court erroneously refused requested jury instruction on sudden emergency. Gronneberg v. Hoffart, 466 N.W.2d 809, 1991 N.D. LEXIS 42 (N.D. 1991).

Working Order of Lights Required.

In sum, this section and N.D.C.C. §§ 39-21-19 and 39-10-38 require stop lights on the rear of each vehicle to be brake-activated, to be in working order, and to be used. Gronneberg v. Hoffart, 466 N.W.2d 809, 1991 N.D. LEXIS 42 (N.D. 1991).

39-21-06.1. Additional lighting equipment.

  1. Any motor vehicle may be equipped with one or more backup lamps either separately or in combination with other lamps, but the backup lamp or lamps may not be lighted when the vehicle is in a forward motion.
  2. Any vehicle may be equipped with one or more side marker lamps which may be flashed in conjunction with turn signals or vehicular hazard warning signals.

Source:

S.L. 1979, ch. 431, § 6.

39-21-07. Application of succeeding sections.

Those sections of this chapter which follow immediately, including sections 39-21-08, 39-21-09, 39-21-10, 39-21-11, and 39-21-12, relating to clearance and marker lamps, reflectors, and stoplights, apply as stated in said sections to vehicles of the type therein enumerated, namely passenger buses, trucks, truck tractors, and certain trailers, semitrailers and pole trailers, respectively, when operated upon any highway, and said vehicles must be equipped as required and all lamp equipment required must be lighted at the times mentioned in section 39-21-01, except that clearance and side marker lamps need not be lighted on any said vehicle when operated within any municipality where there is sufficient light to render clearly discernible persons and vehicles on the highway at a distance of five hundred feet [152.4 meters].

Source:

S.L. 1963, ch. 283, § 19.

39-21-08. Additional equipment required on certain vehicles.

In addition to other equipment required in this chapter, the following vehicles must be equipped as herein stated under the conditions stated in section 39-21-07:

  1. On every bus, truck, trailer, or semitrailer there must be the following:
    1. On the rear, two reflectors, one at each side, and one stoplight.
    2. A trailer or semitrailer which is not so loaded or of such dimensions as to obscure the stoplight on the towing vehicle, need not be equipped with a stoplight.
  2. On every bus, truck, trailer, or semitrailer eighty inches [203.2 centimeters] or more in overall width there must be the following:
    1. On the rear, two reflectors, one at each side, two clearance lamps, one at each side, and one stoplight.
    2. On the front, two clearance lamps, one at each side.
  3. On every truck tractor there must be the following:
    1. On the front, two clearance lamps, one at each side.
    2. On the rear, one stoplight.
  4. On every pole trailer there must be the following:
    1. On the rear of the pole trailer or load, two reflectors, one at each side.
    2. In addition, on pole trailers exceeding three thousand pounds [1360.78 kilograms] gross weight, there must be on each side one side marker lamp and one clearance lamp which may be in combination, to show to the front, side, and rear.

Source:

S.L. 1963, ch. 283, § 19.

39-21-09. Color of clearance lamps, side marker lamps, backup lamps, and reflectors.

  1. Front clearance lamps and those marker lamps and reflectors mounted on the front or on the side near the front of a vehicle must display or reflect an amber color.
  2. Rear clearance lamps and those marker lamps and reflectors mounted on the rear or on the sides near the rear of a vehicle must display or reflect a red color.
  3. All lighting devices and reflectors mounted on the rear of any vehicle must display or reflect a red color, except that the light illuminating the license plate must be white and the light emitted by a backup lamp must be white or amber.
  4. Any person who violates this section must be assessed a fee of ten dollars for each offense.

Source:

S.L. 1963, ch. 283, § 19; 1989, ch. 463, § 6.

39-21-10. Mounting of reflectors, clearance lamps, and side marker lamps.

  1. Reflectors when required by section 39-21-08 must be mounted at a height not less than fifteen inches [38.1 centimeters] and not higher than sixty inches [152.4 centimeters] above the ground on which the vehicle stands, except that if the highest part of the permanent structure of the vehicle is less than fifteen inches [38.1 centimeters] the reflector must be mounted as high as that part of the permanent structure will permit. The rear reflectors on a pole trailer may be mounted on each side of the bolster or load. Any required red reflector on the rear of a vehicle may be incorporated with the taillamp but must meet all the other reflector requirements of this chapter.
  2. Clearance lamps must be mounted on the permanent structure of the vehicle in such a manner as to indicate its extreme width and as near the top thereof as practicable. Clearance lamps and side marker lamps may be mounted in combination provided illumination is given as required herein with reference to both.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 7.

39-21-11. Visibility of reflectors, clearance lamps, and marker lamps.

  1. Every reflector upon any vehicle referred to in section 39-21-08 must be of such size and characteristics and so maintained as to be readily visible at nighttime from all distances within six hundred feet [182.88 meters] to one hundred feet [30.48 meters] from the vehicle when directly in front of lawful lower beams of headlamps, except that the visibility for reflectors on vehicles manufactured or assembled prior to January 1, 1970, must be measured in front of lawful upper beams of headlamps. Reflectors required to be mounted on the sides of the vehicle must reflect the required color of light to the sides, and those mounted on the rear must reflect a red color to the rear.
  2. Front and rear clearance lamps must be capable of being seen and distinguished under normal atmospheric conditions at the times lights are required at a distance of five hundred feet [152.4 meters] from the front and rear, respectively, of the vehicle.
  3. Side marker lamps must be capable of being seen and distinguished under normal atmospheric conditions at the times lights are required at a distance of five hundred feet [152.4 meters] from the side of the vehicle on which mounted.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 8.

39-21-12. Obstructed lights not required.

Whenever motor and other vehicles are operated in combination during the time that lights are required, any lamp need not be lighted which, by reason of its location on a vehicle of the combination, would be obscured by another vehicle of the combination, but this does not affect the requirement that lighted clearance lamps be displayed on the front of the foremost vehicle required to have clearance lamps, nor that all lights required on the rear of the rearmost vehicle of any combination must be lighted.

Source:

S.L. 1963, ch. 283, § 19.

39-21-13. Lamp or flag on projecting load.

Whenever the load upon any vehicle extends to the rear four feet [121.92 centimeters] or more beyond the bed or body of the vehicle there must be displayed at the extreme rear end of the load, at the times specified in section 39-21-01, a red light or lantern plainly visible from a distance of at least six hundred feet [182.88 meters] to the sides and rear. The red light or lantern required under this section must be in addition to the red rear light required upon every vehicle. At any other time there must be displayed at the extreme rear end of a load a red flag or cloth not less than twelve inches [30.48 centimeters] square and so hung that the entire area is visible to the driver of a vehicle approaching from the rear.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 9.

Collateral References.

Load projecting beyond rear or side of motor vehicle or trailer, liability for injury or damage caused by collision with portion of, 21 A.L.R.3d 371.

39-21-14. Lamps on parked vehicle.

  1. Whenever a vehicle is lawfully parked upon a street or highway during the hours between a half hour after sunset and a half hour before sunrise and in the event there is sufficient light to reveal any person or object within a distance of one thousand feet [304.8 meters] upon such street or highway, no lights need be displayed.
  2. Whenever a vehicle is parked or stopped upon a roadway or shoulder adjacent thereto, whether attended or unattended, during the hours between a half hour after sunset and a half hour before sunrise and there is not sufficient light to reveal any person or object within a distance of one thousand feet [304.8 meters] upon such highway, the vehicle must be equipped with at least one lamp displaying a white or amber light visible from a distance of one thousand feet [304.8 meters] to the front of the vehicle. The same lamp or at least one other lamp must display a red light visible from a distance of one thousand feet [304.8 meters] to the rear of the vehicle, and the location of the lamp or lamps must always be such that at least one lamp or combination of lamps meeting the requirements of this section is installed as near as practicable to the side of the vehicle which is closest to passing traffic. Local authorities may provide by ordinance that no lights need be displayed upon any motor vehicle when parked upon a highway where the speed limit in effect does not exceed thirty miles [48.28 kilometers] per hour in accordance with local ordinances or where there is sufficient light to reveal any person within a distance of two hundred feet [60.96 meters] upon such highway.
  3. Any lighted headlamps upon a parked vehicle must be depressed or dimmed.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 10.

Notes to Decisions

Sufficient Compliance.

A motor vehicle which stopped on the highway to permit another car to pass did not violate former statute because it had only one headlight. Newton v. Gretter, 60 N.D. 635, 236 N.W. 254, 1931 N.D. LEXIS 213 (N.D. 1931).

Collateral References.

Parked or standing motor vehicle, liability or recovery in automobile negligence action as affected by absence or insufficiency of lights on, 61 A.L.R.3d 13.

39-21-15. Lamps, reflectors, and reflective materials on farm tractors, farm equipment, and implements of husbandry.

  1. Every farm tractor, self-propelled unit of farm equipment, or towed implement of husbandry, manufactured or assembled after January 1, 1980, must at all times, and every farm tractor, self-propelled unit of farm equipment, or towed implement of husbandry must, when operated upon the highways of this state during the times mentioned in section 39-21-01, be equipped as follows:
    1. Tractors and self-propelled units of farm equipment must be equipped with two single-beam or multiple-beam headlamps meeting the requirements of section 39-21-20 or 39-21-22; provided, that a tractor or self-propelled unit of farm equipment which is not equipped with an electrical system must be equipped with at least one lamp displaying a white light visible when lighted from a distance of not less than one thousand feet [304.8 meters] to the front of the vehicle. Every tractor and self-propelled unit of farm equipment must be equipped with at least one lamp displaying a red light visible when lighted from a distance of one thousand feet [304.8 meters] to the rear of the vehicle. In addition, every tractor and every self-propelled unit of farm equipment must be equipped with two red reflectors visible from all distances from six hundred feet [182.88 meters] to one hundred feet [30.48 meters] to the rear when directly in front of lawful lower beams of headlamps.
    2. Every towed unit of farm equipment or implement of husbandry must be equipped with at least one lamp displaying a red light visible when lighted from a distance of one thousand feet [304.8 meters] to the rear or two red reflectors visible from all distances within six hundred feet [182.88 meters] to one hundred feet [30.48 meters] to the rear when directly in front of lawful lower beams of headlamps. In addition, if the extreme left projection of a towed unit of farm equipment or implement of husbandry extends beyond the extreme left projection of the towing tractor or vehicle, the unit or implement must be equipped with at least one amber lamp or reflector mounted to indicate as nearly as practicable the extreme left projection and visible from all distances within six hundred feet [182.88 meters] to one hundred feet [30.48 meters] to the front when illuminated by the lower beams of headlamps and at least one red lamp or reflector so mounted and visible from the same distances to the rear.
  2. The lamps and reflectors required by this section must be so positioned as to show from front and rear as nearly as practicable the extreme projection of the vehicle carrying them on the side of the roadway used in passing the vehicle. If a farm tractor or a unit of farm equipment, whether self-propelled or towed, is equipped with two or more lamps or reflectors visible from the front or two or more lamps or reflectors visible from the rear, the lamps or reflectors must be so positioned that the extreme projections both to the left and to the right of the vehicle must be indicated as nearly as is practicable. If all other requirements are met, reflective tape or paint may be used in lieu of the reflectors required in subdivision b.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 11; 2021, ch. 283, § 13, effective August 1, 2021.

Notes to Decisions

Instructions.

Giving of instruction which, in essence, quoted all of this section was error but was not prejudicial in highway accident case in which automobile struck the rear of a plow pulled by a tractor; although statute contains different requirements for different types of vehicles, jury could have reasonably inferred that no self-propelled unit of farm machinery was involved; refusal of requested instruction on statutory definition of “lawful upper beams of head lamps” was not error since there was no evidence automobile driver was using upper beams when the accident occurred. Leake v. Hagert, 175 N.W.2d 675, 1970 N.D. LEXIS 112 (N.D. 1970).

Knowledge of Condition.

Where tractor was being driven with lights in violation of this section, owner-bailor who knew the tractor had improper lighting and would be driven on the highways to and from work by the bailee was negligent. Farmers Union Grain Terminal Ass'n v. Briese, 192 N.W.2d 170, 1971 N.D. LEXIS 112 (N.D. 1971).

Violation Evidences Negligence.

Defendant’s violation of this section by pulling haystack mover at night without proper lights or reflectors was evidence of negligence that was actionable when shown to be proximate cause of accident. Simon v. Woodland, 179 N.W.2d 422, 1970 N.D. LEXIS 127 (N.D. 1970).

39-21-16. Lamps on other vehicles and equipment.

Every vehicle, including animal-drawn vehicles and vehicles referred to in subsection 4 of section 39-21-46, not specifically required by the provisions of this chapter to be equipped with lamps or other lighting devices, must at all times specified in section 39-21-01 be equipped with at least one lamp displaying a white light visible from a distance of not less than one thousand feet [304.8 meters] to the front of the vehicle, and must also be equipped with two lamps displaying red light visible from a distance of not less than one thousand feet [304.8 meters] to the rear of the vehicle, or two red reflectors visible for distances of one hundred feet [30.48 meters] to six hundred feet [182.88 meters] to the rear when illuminated by the lower beams of headlamps.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 12; 2003, ch. 317, § 7.

39-21-17. Spot lamps and auxiliary lamps.

  1. Spot lamps. Any motor vehicle may be equipped with not to exceed two spot lamps and every lighted spot lamp must be so aimed and used so that no part of the high-intensity portion will strike the windshield, or any windows, mirror, or occupant of another vehicle in use.
  2. Fog lamps. Any motor vehicle may be equipped with not to exceed two fog lamps mounted on the front at a height not less than twelve inches [30.48 centimeters] nor more than thirty inches [76.2 centimeters] above the level surface upon which the vehicle stands and so aimed that when the vehicle is not loaded none of the high-intensity portion of the light to the left of the center of the vehicle shall at a distance of twenty-five feet [7.62 meters] ahead project higher than a level of four inches [10.76 centimeters] below the level of the center of the lamp from which it comes. Lighted fog lamps meeting the above requirements may be used with lower headlamp beams as specified in subsection 2 of section 39-21-20.
  3. Auxiliary passing lamps. Any motor vehicle may be equipped with not to exceed two auxiliary passing lamps mounted on the front at a height not less than twenty-four inches [60.96 centimeters] nor more than forty-two inches [106.68 centimeters] above the level surface upon which the vehicle stands. The provisions of section 39-21-20 apply to any combination of headlamps and auxiliary passing lamps.
  4. Auxiliary driving lamps. Any motor vehicle may be equipped with not to exceed two auxiliary driving lamps. Any auxiliary driving lamp mounted at a height of less than sixteen inches [40.64 centimeters] or more than forty-two inches [106.68 centimeters] above the level surface upon which the vehicle stands may not be lighted when the vehicle is used upon a highway. The provisions of section 39-21-20 apply to any combination of headlamps and auxiliary driving lamps.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, §§ 13, 14.

39-21-18. Audible and visual signals on vehicle.

  1. Every authorized emergency vehicle must, in addition to any other equipment and distinctive markings required by this chapter, be equipped with a siren, exhaust whistle, or bell capable of causing a minimum sound intensity level of eighty-five decibels. The siren or signal must be mounted outside of the vehicle or in front of the radiator.
  2. Any authorized emergency vehicle may be equipped with safety strobe lights.
  3. A police vehicle when used as an authorized emergency vehicle may be equipped with alternately flashing red lights specified herein and a vehicle designated for the use of the adjutant general or the assistant adjutant general may be equipped with a siren, exhaust whistle, or bell specified herein.
  4. Every schoolbus, except vehicles with a seating capacity of less than sixteen students, must be equipped with:
    1. Signal lamps mounted as high and as widely spaced laterally as practicable, which must be capable of displaying to the front two alternately flashing red lights located at the same level and to the rear two alternately flashing red lights located at the same level, and these lights must have sufficient intensity to be visible at five hundred feet [152.4 meters] in normal sunlight;
    2. A stop sign on a control arm that can be activated by the bus driver. The stop sign on the control arm must be located on the left side of the bus, be equipped with a flashing red light, and when activated, extend out from the bus at approximately a ninety-degree angle; and
    3. Safety strobe lights if the schoolbus was manufactured after July 31, 1998. Older schoolbuses may have safety strobe lights installed.

Source:

S.L. 1963, ch. 283, § 19; 1965, ch. 261, § 2; 1975, ch. 148, § 2; 1987, ch. 473, § 2; 1997, ch. 341, § 2.

Note.

Section 5 of chapter 473, S.L. 1987, provides that the act does not require the installation of stop signs on control arms on schoolbuses in use before July 1, 1988.

39-21-18.1. Flashing signals on rural mail vehicle — Standards.

Notwithstanding any other provision of law, it is lawful for any vehicle regularly used as a rural mail delivery vehicle to display two simultaneously flashing amber lamps mounted on top of such vehicle while it is being used to deliver mail. The light assembly must consist of two lamps mounted on top of the vehicle with one lamp being as near as is practicable to each side of the vehicle, displaying an amber light not less than four inches [10.16 centimeters] in diameter and visible under normal atmospheric conditions for a distance of at least five hundred feet [152.4 meters] to the front and to the rear of such vehicle. The lamp assembly must include a sign at least seven inches [17.78 centimeters] in height containing the words “U.S. MAIL” in black letters not less than four inches [10.16 centimeters] in height and of not less than three-quarters of an inch [1.905 centimeters] in width of stroke, upon a white background. The sign must be constructed so as to permit folding down out of the line of vision when not in use. The lamps must be equipped with a device to cause them to flash on and off, and such lamps must be so wired as to cause both lamps to flash simultaneously. In lieu of the light assembly permitted by this section, a vehicle may display one revolving amber light placed on top of the vehicle and accompanied by a sign placed on the rear of the vehicle and containing the words “U.S. MAIL”. The light and sign must comply with the requirements applicable to the amber lights and sign used with a light assembly permitted by this section. Amber lights permitted by this section may only be operated for the purpose of discharging official duties and must not be in operation except during the actual performance of duty delivering mail.

Source:

S.L. 1963, ch. 284, § 1; 1991, ch. 430, § 1.

39-21-19. Signal lamps and signal devices.

  1. Any motor vehicle may be equipped and when required under this chapter must be equipped with a stop lamp or lamps on the rear of the vehicle which shall display a red light visible from a distance of not less than three hundred feet [91.44 meters] to the rear in normal sunlight, and which shall be actuated upon application of the service (foot) brake, and which may, but need not, be incorporated with one or more other rear lamps.
  2. Any motor vehicle may be equipped and when required under this chapter must be equipped with lamps showing to the front and rear for the purpose of indicating an intention to turn either to the right or left. The lamps showing to the front must be located on the same level and as widely spaced laterally as practicable and when in use display a white or amber light, or any shade of color between white and amber, visible from a distance of not less than three hundred feet [91.44 meters] to the front in normal sunlight, and the lamps showing to the rear must be located at the same level and as widely spaced laterally as practicable and when in use display a red or amber light, or any shade of color between red and amber, visible from a distance of not less than three hundred feet [91.44 meters] to the rear in normal sunlight. Any motor vehicle or combination of vehicles eighty inches [20.32 decimeters] or more in overall width, and manufactured or assembled after January 1964, must be equipped with the lamps required by this subsection mounted and spaced in the same manner but visible from a distance of not less than five hundred feet [152.4 meters] to the front and rear in normal sunlight. When actuated the lamps must indicate the intended direction of turning by flashing the lights showing to the front and rear on the side toward which the turn is made. Turn signal lamps may, but need not, be incorporated in other lamps on the vehicle.
  3. No stop lamp or signal lamp may project a glaring light.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 15.

Notes to Decisions

Duty to Signal.

The trial court erroneously refused requested instruction on the duty of a driver to appropriately signal a sudden stop or decrease in speed. Although the trial court gave an instruction on brake lights which encompassed N.D.C.C. §§ 39-21-06(1) and this section, and, although the trial court instructed that ordinary care was required in operating a motor vehicle, it did not instruct on the duty to signal before a stop, as requested. While the violation of a statutory duty is not negligence per se, it is evidence of negligence. Gronneberg v. Hoffart, 466 N.W.2d 809, 1991 N.D. LEXIS 42 (N.D. 1991).

Sudden Emergency Doctrine.

Application of the sudden emergency doctrine is well-settled. Gronneberg v. Hoffart, 466 N.W.2d 809, 1991 N.D. LEXIS 42 (N.D. 1991).

Where there was evidence that a “sudden emergency” arose when defendant braked unexpectedly to avoid hitting the pickup that he was following, but gave no warning of his sudden stop, the trial court erroneously refused requested jury instruction on sudden emergency. Gronneberg v. Hoffart, 466 N.W.2d 809, 1991 N.D. LEXIS 42 (N.D. 1991).

Working Order of Lights Required.

In sum, N.D.C.C. § 39-21-06, this section and N.D.C.C. § 39-10-38 require stop lights on the rear of each vehicle to be brake-activated, to be in working order, and to be used. Gronneberg v. Hoffart, 466 N.W.2d 809, 1991 N.D. LEXIS 42 (N.D. 1991).

39-21-19.1. Vehicular hazard warning signals.

  1. Any vehicle may be equipped with lamps for the purpose of warning the operators of other vehicles of the presence of a vehicular traffic hazard requiring the exercise of unusual care in approaching, overtaking, or passing.
  2. After January 1, 1980, every bus, truck, truck tractor, trailer, semitrailer, or pole trailer eighty inches [20.32 decimeters] or more in overall width or thirty feet [9.14 meters] or more in overall length must be equipped with lamps meeting the requirements of this section.
  3. Vehicular hazard warning signal lamps used to display warning to the front must be mounted at the same level and as widely spaced laterally as practicable, and must display simultaneously flashing white or amber lights, or any shade of color between white and amber. The lamps used to display warning to the rear must be mounted at the same level and as widely spaced laterally as practicable, and must show simultaneously flashing amber or red lights, or any shade of color between amber and red. These warning lights must be visible from a distance of not less than five hundred feet [152.4 meters] in normal sunlight.

Source:

S.L. 1979, ch. 431, § 16.

39-21-20. Multiple-beam road-lighting equipment.

Except as hereinafter provided, the headlamps or the auxiliary driving lamp or the auxiliary passing lamp or combination thereof on motor vehicles must be so arranged that the driver may select at will between distributions of light projected to different elevations and these lamps may, in addition, be so arranged that selection can be made automatically, subject to the following limitations:

  1. There must be an uppermost distribution of light, or composite beam, so aimed and of sufficient intensity to reveal persons and vehicles at a distance of at least four hundred fifty feet [137.16 meters] ahead for all conditions of loading.
  2. There must be a lowermost distribution of light, or composite beam, so aimed and of sufficient intensity to reveal persons and vehicles at a distance of at least one hundred fifty feet [45.72 meters] ahead; and on a straight level road under any condition of loading none of the high-intensity portion of the beam may be directed to strike the eyes of an approaching driver.
  3. Every new motor vehicle, registered in this state, which has multiple-beam road-lighting equipment must be equipped with a beam indicator, which must be lighted whenever the uppermost distribution of light from the headlamps is in use, and may not otherwise be lighted. The indicator must be so designed and located that when lighted it will be readily visible without glare to the driver of the vehicle so equipped.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 17.

39-21-21. Use of multiple-beam road-lighting equipment.

Whenever a motor vehicle is being operated on a roadway or shoulder adjacent thereto during the times specified in section 39-21-01, the driver shall use a distribution of light, or composite beam, directed high enough and of sufficient intensity to reveal persons and vehicles at a safe distance in advance of the vehicle, subject to the following requirements and limitations:

  1. Whenever a driver of a vehicle approaches an oncoming vehicle within five hundred feet [152.4 meters], such driver shall use a distribution of light, or composite beam, so aimed that the glaring rays are not projected into the eyes of the oncoming driver. The lowermost distribution of light, or composite beam, specified in subsection 2 of section 39-21-20 must be deemed to avoid glare at all times, regardless of road contour and loading.
  2. Whenever the driver of a vehicle follows another vehicle within three hundred feet [91.44 meters] to the rear, the driver shall use a distribution of light permissible under this chapter other than the uppermost distribution of light specified in subsection 1 of section 39-21-20.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 18.

Notes to Decisions

Prohibited Use of High-Beam Headlights.

Because N.D.C.C. § 39-21-21 prohibited any use of high-beam headlights within 500 feet of an oncoming vehicle, a deputy had reasonable suspicion to stop defendant for violating the statute; the deputy testified that he was about an eighth of a mile away from defendant’s vehicle when the flashing began. The trial court reasoned that the parties were moving and would have entered the 500-foot zone pretty quickly; thus, the investigative stop of defendant’s vehicle was constitutionally permissible, and her motion to suppress evidence was properly denied. State v. Westmiller, 2007 ND 52, 730 N.W.2d 134, 2007 N.D. LEXIS 51 (N.D. 2007).

Suppression of Evidence.

Evidence from a traffic stop was properly suppressed because nothing showed an officer conducted the stop due to a reasonable and articulable suspicion of criminal activity, as the officer clearly did not stop defendant for flashing high-beam headlights at police vehicles. State v. Rahier, 2014 ND 153, 849 N.W.2d 212, 2014 N.D. LEXIS 154 (N.D. 2014).

Collateral References.

Glare of lights, duty and liability of vehicle driver blinded by, 22 A.L.R.2d 292, 64 A.L.R.3d 551, 64 A.L.R.3d 760.

Failure to dim lights, liability or recovery in automobile negligence action as affected by, 63 A.L.R.3d 824.

39-21-22. Single-beam road-lighting equipment.

Headlamps arranged to provide a single distribution of light are permitted on motor vehicles manufactured and sold prior to one year after July 1, 1963, in lieu of multiple-beam road-lighting equipment herein specified if the single distribution of light complies with the following requirements and limitations:

  1. The headlamps must be so aimed that when the vehicle is not loaded none of the high-intensity portion of the light shall at a distance of twenty-five feet [7.62 meters] ahead project higher than a level of five inches [12.7 centimeters] below the level of the center of the lamp from which it comes, and in no case higher than forty-two inches [106.68 centimeters] above the level on which the vehicle stands at a distance of seventy-five feet [22.86 meters] ahead.
  2. The intensity must be sufficient to reveal persons and vehicles at a distance of at least two hundred feet [60.96 meters].

Source:

S.L. 1963, ch. 283, § 19.

39-21-23. Lighting equipment on motor-driven cycles. [Repealed]

Repealed by S.L. 1979, ch. 431, § 37.

39-21-24. Arrest for improperly adjusted headlamps or improper bulbs — Certificate of conformance a defense.

The driver of any motor vehicle equipped with approved headlamps, auxiliary driving lamps, rear lamps, or signal lamps who is arrested upon the charge that such lamps are adjusted improperly or are equipped with bulbs of a candle power not approved for use therewith, must be allowed forty-eight hours within which to bring such lamps into conformance with the requirements of this chapter. It is a defense to any such charge that the person arrested produces in court or submits to the state’s attorney a certificate showing that within forty-eight hours after such arrest such lamps have been made to conform with the requirements of this chapter.

Source:

S.L. 1963, ch. 283, § 19.

39-21-25. Number of driving lamps required or permitted.

  1. At all times specified in section 39-21-01 at least two lighted lamps must be displayed, one on each side at the front of every motor vehicle, except when a vehicle is parked subject to the regulations governing lights on parked vehicles.
  2. Whenever a motor vehicle equipped with headlamps as herein required is also equipped with any auxiliary lamps or a spot lamp or any other lamp on the front thereof projecting a beam of intensity greater than three hundred candlepower, not more than a total of four of any such lamps on the front of a vehicle may be lighted at any one time when upon a highway.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 19.

Notes to Decisions

Violation.

District court erred in suppressing evidence seized after a traffic stop on the ground the statute was unconstitutionally vague because a police officer's belief that the law prohibited operating a vehicle with more than four illuminated front facing lights was objectively reasonable; the validity of the stop did not turn on the constitutionality of the statute but on whether reasonable suspicion existed at the time of the traffic stop to believe defendant was in violation of the statute. State v. Patrick, 2016 ND 209, 886 N.W.2d 681, 2016 N.D. LEXIS 201 (N.D. 2016).

39-21-26. Special restrictions on lamps.

  1. Any lighted lamp or illuminating device upon a motor vehicle, other than headlamps, spot lamps, auxiliary lamps, flashing turn signals, emergency vehicle warning lamps and schoolbus warning lamps, which projects a beam of light of an intensity greater than three hundred candlepower must be so directed that no part of the high-intensity portion of the beam will strike the level of the roadway on which the vehicle stands at a distance of more than seventy-five feet [22.86 meters] from the vehicle.
  2. No person may drive or move any vehicle or equipment upon any highway with any lamp or device thereon displaying a red or green light visible from directly in front of the center thereof. This section does not apply to any vehicle upon which a red light visible from the front is expressly authorized or required by this chapter.
  3. Flashing lights are prohibited except on an authorized emergency vehicle, schoolbus, snow-removal equipment or on any vehicle as a means of indicating a right or left turn, or the presence of a vehicular traffic hazard requiring unusual care in approaching, overtaking, or passing.

Source:

S.L. 1963, ch. 283, § 19.

39-21-27. Special lighting and warning equipment on schoolbuses.

  1. The superintendent of public instruction, in cooperation with the director, is authorized to adopt standards and specifications applicable to lighting equipment and special warning devices, including the stop sign on a control arm specified in section 39-21-18, to be carried by schoolbuses and other vehicles transporting children to school for compensation, consistent with the provisions of this chapter, but supplemental thereto. The standards and specifications must correlate with and, so far as possible, conform to the specifications then current as approved by the society of automotive engineers.
  2. It is unlawful to operate any flashing warning signal light or the stop sign on the control arm specified in section 39-21-18 on a schoolbus except when the schoolbus is stopped on a highway for the purpose of permitting schoolchildren to board or alight from the schoolbus.
  3. Schoolbuses equipped with safety strobe lights pursuant to subsection 4 of section 39-21-18 must have the safety strobe light in operation whenever the schoolbus is being operated upon a highway for purposes of transporting children either to or from school or for a school-sanctioned activity. It is unlawful to operate a safety strobe light on a schoolbus when the schoolbus is used for any other purpose.

Source:

S.L. 1963, ch. 283, § 19; 1987, ch. 473, § 3; 1997, ch. 341, § 3.

Note.

Section 5 of chapter 473, S.L. 1987, provides that the act does not require the installation of stop signs on control arms on schoolbuses in use before July 1, 1988.

39-21-27.1. Schoolbus standards — Equipment and color regulations.

Only motor vehicles which have been designed by the manufacturer for the purpose of carrying passengers may be used as schoolbuses. The superintendent of public instruction may adopt reasonable regulations, consistent with the provisions of this chapter, relating to the construction, design, operation, equipment, and color of schoolbuses and shall prepare and publish standards for North Dakota schoolbuses which must set forth the regulations. The superintendent of public instruction may issue an order prohibiting the operation on public streets, highways, and elsewhere of any schoolbus which does not comply with the regulations, and school districts operating buses which do not meet the regulations will not be eligible to receive state reimbursement for vehicular transportation. If a schoolbus is purchased for a purpose or purposes other than the public transport of schoolchildren, the purchaser shall change the color of the vehicle and deactivate or remove the warning signal lights and the stop sign on the control arm.

Highway patrol officers and all peace officers are authorized to make necessary investigations relating to compliance with the regulations adopted by the superintendent of public instruction and to make reports of their findings to the office of the superintendent of public instruction.

Source:

S.L. 1963, ch. 283, § 19; 1975, ch. 360, § 1; 1987, ch. 473, § 4.

Note.

Section 5 of chapter 473, S.L. 1987, provides that the act does not require the installation of stop signs on control arms on schoolbuses in use before July 1, 1988.

39-21-28. Standards for lights on snow-removal or other hazardous equipment.

  1. The director shall adopt standards and specifications applicable to headlamps, clearance lamps, identification and other lamps on snow-removal or other hazardous equipment when operated on the highways of this state in lieu of the lamps otherwise required on motor vehicles by this chapter. Such standards and specifications may permit the use of flashing lights for purposes of identification on snow-removal equipment when in service upon the highways. The standards and specifications for lamps referred to in this section must correlate with and, so far as possible, conform with those approved by the American association of state highway officials.
  2. It is unlawful to operate any snow-removal equipment on any highway unless the lamps thereon comply with and are lighted when and as required by the standards and specifications adopted as provided in this section.

Source:

S.L. 1963, ch. 283, § 19.

39-21-29. Selling or using lamps or equipment.

  1. No person may have for sale, sell, or offer for sale for use upon or as a part of the equipment of a motor vehicle, trailer, pole trailer, or semitrailer, or use upon these vehicles any headlamp, auxiliary, or fog lamp, rear lamp, signal lamp, or required reflector, or parts of any of the foregoing which tend to change the original design or performance, unless of a type which has been approved by the department. The provisions of this subsection do not apply to equipment in actual use or replacement parts when this section is adopted.
  2. No person may have for sale, sell, or offer for sale for use upon or as a part of the equipment of a motor vehicle, trailer, pole trailer, or semitrailer any lamp or device mentioned in this section which has been approved by the department unless the lamp or device bears the trademark or name under which it is approved so as to be legible when installed.
  3. No person may use upon any motor vehicle, trailer, pole trailer, or semitrailer any lamps mentioned in this section unless the lamps are mounted, adjusted, and aimed in accordance with instructions of the department.

Source:

S.L. 1963, ch. 283, § 19; 1967, ch. 317, § 1; 1979, ch. 431, § 20.

39-21-30. Authority of department.

  1. The department may approve or disapprove any lighting devices or other safety equipment, component, or assembly, even though the device is of a type for which approval is not specifically required in this chapter. The department may issue and enforce regulations establishing standards and specifications for the approval of the lighting devices, safety equipment, components, or assemblies, their installation, adjustment and aiming, and adjustment when in use on motor vehicles. The regulations must correlate with and, so far as practicable, conform to the then current applicable standards and specifications of the society of automotive engineers.
  2. The department shall approve or disapprove any lighting device or other safety equipment, component, or assembly, of a type on which approval is specifically required in this chapter, within a reasonable time after the device has been submitted.
  3. The department may set up the procedure which must be followed when approval is sought for any lighting device or safety equipment, component, or assembly. The procedure may provide for submission of the device, equipment, component, or assembly to the American association of motor vehicle administrators, the society of automotive engineers, or other appropriate testing agency as the agent of the department and for the issuance of an approval certificate by the testing agency in the name of the department in lieu of submission of the device, equipment, component, or assembly to the department. Approval by the testing agency has the same force and effect as if it had been issued by the department.
  4. The department upon approving any device, equipment, component, or assembly shall issue to the applicant a certificate of approval together with any instructions determined by the department. The department shall maintain lists of all devices, components, or assemblies which it has approved.

Source:

S.L. 1963, ch. 283, § 19; 1967, ch. 318, § 1; 1979, ch. 431, § 21.

39-21-30.1. Duration of approval.

Approvals of lighting devices or other safety equipment, components, or assemblies remain valid unless revoked under section 39-21-31 or unless the department requires them to be renewed by regulation.

Source:

S.L. 1979, ch. 431, § 23.

39-21-31. Revocation of certificate of approval.

When the department has reason to believe that an approved lighting device or other safety equipment, component, or assembly being sold commercially does not comply with the requirements of this chapter, the department may, after giving thirty days’ previous notice to the person holding the certificate of approval for the device in this state, conduct a hearing upon the question of compliance of the approved device. After the hearing, the department shall determine whether the approved device meets the requirements of this chapter. If the device does not meet the requirements of this chapter, the department shall give notice to the person holding the certificate of approval for the device in this state of its intention to revoke the approval.

If at the expiration of ninety days after notice the person holding the certificate of approval for the device has failed to satisfy the department that the approved device to be sold meets the requirements of this chapter, the department shall suspend or revoke the approval issued for the device. The department may require that devices sold after the notification following the hearing be replaced with devices that do comply with the requirements of this chapter and shall require the withdrawal of those devices from the market.

When an approval has been suspended or revoked pursuant to this section, the device may not again be approved unless and until it has been submitted for approval and it has been demonstrated, in the same manner as in an application for an original approval, that the device meets the requirements of this chapter. The department may at the time of the retest purchase in the open market and submit to the testing agency one or more sets of the approved devices, and if the device upon retest fails to meet the requirements of this chapter, the department may refuse to renew the certificate of approval of the device. The department may require that all previously approved devices be effectively recalled and removed from the market as a condition for reapproval.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 22.

39-21-32. Brake equipment required.

  1. Every motor vehicle, other than a motorcycle or motor-driven cycle, when operated upon a highway must be equipped with brakes adequate to control the movement of and to stop and hold such vehicle, including two separate means of applying the brakes, each of which means must be effective to apply the brakes to at least two wheels. If these two separate means of applying the brakes are connected in any way, they must be so constructed that failure of any one part of the operating mechanism does not leave the motor vehicle without brakes on at least two wheels.
  2. Every farm tractor, motorcycle, and motor-driven cycle, when operated upon a highway, must be equipped with at least one brake, which may be operated by hand or foot.
  3. Every trailer or semitrailer when operated upon a highway at a speed in excess of twenty-five miles [40.23 kilometers] per hour must be equipped with safety chains or brakes adequate to control the movement of and to stop and to hold such vehicle and so designed as to be applied by the driver of the towing motor vehicle from its cab, and said brakes must be so designed and connected that in case of an accidental breakaway of the towed vehicle the brakes are automatically applied.
  4. One of the means of brake operation must be parking brakes adequate to hold the vehicle on any grade on which it is operated, under all conditions of loading, on a surface free from snow, ice, or loose material. The parking brakes must be capable of being applied in conformance with the foregoing requirements by the driver’s muscular effort or by spring action or by equivalent means. Their operation may be assisted by the service brakes or other source of power provided that failure of the service brake actuation system or other power-assisting mechanism will not prevent the parking brakes from being applied in conformance with the foregoing requirements. The parking brakes must be so designed that when once applied they remain applied with the required effectiveness despite exhaustion of any source of energy or leakage of any kind. The same brakedrums, brakeshoes and lining assemblies, brakeshoe anchors, and mechanical brakeshoe actuation mechanism normally associated with the wheel brake assemblies may be used for both the service brakes and the parking brakes.

Source:

S.L. 1963, ch. 283, § 19; 1967, ch. 319, § 1; 1993, ch. 396, § 1.

Cross-References.

Braking devices required on mobile homes, see § 39-18-04.

Notes to Decisions

Effect of Violation.

Violation of statute is only evidence of negligence; bailor of automobile was not liable for injuries to third person struck when brakes failed where accident was due to sudden failure of brake cylinder and new brake lining had been installed 5,000 miles before time of accident. Lacy v. Grinsteinner, 190 N.W.2d 11, 1971 N.D. LEXIS 140 (N.D. 1971).

A violation of statute, standing alone, is not inevitably negligence per se. A violation is only evidence of negligence and evidence may raise a question of fact for the jury as to whether the degree of deficiency of brakes constitutes negligence and was a proximate cause of the accident. Greene v. Werven, 275 F.2d 134, 1960 U.S. App. LEXIS 5331 (8th Cir. N.D. 1960).

Collateral References.

Admissibility in evidence, in automobile negligence action, of charts showing braking distance, reaction times, etc., 9 A.L.R.3d 976.

39-21-33. Maintenance of brakes.

All brakes must be maintained in good working order and must be so adjusted as to operate as equally as practicable with respect to the wheels on opposite sides of the vehicle.

Source:

S.L. 1963, ch. 283, § 19.

39-21-34. Brakes on motor-driven cycles. [Repealed]

Repealed by S.L. 1979, ch. 431, § 37.

39-21-35. Hydraulic brake fluid.

  1. The term “hydraulic brake fluid”, as used in this section, means the liquid medium through which force is transmitted to the brakes in the hydraulic brake system of a vehicle.
  2. Hydraulic brake fluid must be distributed and serviced with due regard for the safety of the occupants of the vehicle and the public.
  3. No person may distribute, have for sale, offer for sale, sell, or service any vehicle with any hydraulic brake fluid unless it has been approved by the department under the procedures set forth in section 39-21-30.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 24.

39-21-36. Horn and warning device.

  1. While being operated upon a highway, every motor vehicle must be equipped with a horn in good working order and capable of emitting sound audible under normal conditions from a distance of not less than two hundred feet [60.96 meters], but no horn or other warning device may emit an unreasonably loud or harsh sound or a whistle. Whenever reasonably necessary for safe operation, the driver of a motor vehicle upon a highway shall give audible warning with the vehicle’s horn, but may not otherwise use the vehicle’s horn while upon a highway.
  2. No vehicle may be equipped with nor may any person use upon a vehicle any siren, whistle, or bell, except as otherwise permitted in this section.
  3. Any vehicle may be equipped with a theft alarm signal device which is so arranged that it cannot be used by the driver as an ordinary warning signal.
  4. Any authorized emergency vehicle may be equipped with a siren, whistle, or bell, capable of emitting sound audible under normal conditions from a distance of not less than five hundred feet [152.4 meters] and of a type approved by the department, but the siren may not be used except when the vehicle is operated in response to an emergency call or in the immediate pursuit of an actual or suspected violator of the law, in which events the driver of the vehicle shall sound the siren when reasonably necessary to warn pedestrians and other drivers of approaching vehicles.

Source:

S.L. 1963, ch. 283, § 19; 1971, ch. 374, § 3; 1979, ch. 431, § 25.

Cross-References.

Motorcycle to be equipped with horn, see § 39-27-15.

Notes to Decisions

Duty of Driver.

It is the duty of an auto driver to give a warning of his approach to a pedestrian who is about to cross the street. Vannett v. Cole, 41 N.D. 260, 170 N.W. 663, 1919 N.D. LEXIS 73 (N.D. 1919).

DECISIONS UNDER PRIOR LAW

Unnecessarily Sounding Horn.

Where the driver of an automobile unlawfully sounds the horn when unnecessary and thereby frightens and places a pedestrian in an apparent situation of sudden or imminent danger without his own fault, the pedestrian is entitled to the usual instruction on sudden peril and emergency. HAUSKEN v. COMAN, 66 N.D. 633, 268 N.W. 430, 1936 N.D. LEXIS 211 (N.D. 1936).

Collateral References.

Curve or hill, duty and liability with respect to giving audible signal where driver’s view ahead obstructed at, 16 A.L.R.3d 897.

Intersection, duty and liability with respect to giving audible signal at, 21 A.L.R.3d 268.

Passing, duty and liability with respect to giving audible signal before, 22 A.L.R.3d 325.

Pedestrian, duty and liability with respect to giving audible signal upon approaching, 24 A.L.R.3d 183.

39-21-37. Muffler — Prevention of noise and smoke.

  1. Every motor vehicle must at all times be equipped with a muffler in good working order and in constant operation to prevent excessive or unusual noise and annoying smoke, and no person may use a muffler cutout, bypass, or similar device upon a motor vehicle on a highway.
  2. The engine and power mechanism of every motor vehicle must be so equipped and adjusted as to prevent the escape of excessive fumes or smoke.

Source:

S.L. 1963, ch. 283, § 19.

Notes to Decisions

Constitutionality.

This section is not unconstitutionally vague. State v. Beyer, 441 N.W.2d 919, 1989 N.D. LEXIS 120 (N.D. 1989).

Adequacy of Notice of Proscribed Conduct.

The phrase “excessive or unusual noise” provides adequate notice of the conduct proscribed. State v. Beyer, 441 N.W.2d 919, 1989 N.D. LEXIS 120 (N.D. 1989).

The usual noise emitted from a vehicle which is equipped with a proper muffler and exhaust system is within the common knowledge of drivers. When a vehicle is emitting noise which is inordinate or beyond that which is proper or usual, the reasonable driver should be fully cognizant of the vehicle’s condition and of the possible violation of the law by driving such a vehicle. State v. Beyer, 441 N.W.2d 919, 1989 N.D. LEXIS 120 (N.D. 1989).

Driver Awareness.

A driver should be reasonably aware that a vehicle with excessive or unusual noise will violate traffic laws. Wolf v. North Dakota Dep't of Transp., 523 N.W.2d 545, 1994 N.D. LEXIS 229 (N.D. 1994).

Collateral References.

Effect of violation of public regulation requiring mufflers or similar noise-preventing devices on motor vehicles, 49 A.L.R.2d 1202.

39-21-38. Mirror.

On and after January 1, 1964, every motor vehicle, operated singly or when towing any other vehicle, must be equipped with a mirror so located as to reflect to the driver a view of the highway for a distance of at least two hundred feet [60.96 meters] to the rear of such motor vehicle.

Source:

S.L. 1963, ch. 283, § 19.

Collateral References.

Operation of regulations requiring motor vehicles to be equipped with adequate mirrors, 27 A.L.R.2d 1040.

39-21-39. Windshield — Must be unobstructed and equipped with wipers — Tinted windows.

  1. A motor vehicle must be equipped with a windshield. An individual may not drive any motor vehicle with any sign, poster, or other nontransparent material upon the front windshield, side wings, or side or rear windows which obstructs the driver’s clear view of the highway or any intersecting highway.
  2. The windshield on a motor vehicle must be equipped with a device for cleaning rain, snow, or other moisture from the windshield, which must be constructed as to be controlled or operated by the driver of the vehicle.
  3. The windshield wiper upon a motor vehicle must be maintained in good working order.
  4. An individual may not operate a motor vehicle with any object, material, or tinting displayed, affixed, or applied on the front windshield or any window unless the object, material, or tinting in conjunction with the windshield upon which it is displayed, affixed, or applied has a light transmittance of at least seventy percent or the object, material, or tinting in conjunction with a window other than the windshield upon which it is displayed, affixed, or applied has a light transmittance of at least fifty percent. This subsection does not apply to windows behind the operator if the motor vehicle is equipped with outside mirrors on both sides that meet the requirements of section 39-21-38.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 26; 1983, ch. 445, § 1; 1989, ch. 480, § 1; 1989, ch. 481, § 1; 1989, ch. 482, § 1; 2003, ch. 333, § 1.

Notes to Decisions

Probable Cause to Effectuate Stop.

Officer had probable cause to stop defendant’s vehicle when he observed that defendant had tinted windows, in violation of N.D.C.C. § 39-21-39, even though the officer had received word to stop the vehicle based on an anonymous tip. Although the traffic violation was a pretext for the stop, the stop was not unconstitutional. State v. Bartelson, 2005 ND 172, 704 N.W.2d 824, 2005 N.D. LEXIS 205 (N.D. 2005).

Probable Cause to Effectuate Stop.

Although a cracked windshield did not violate this statute, the officer’s observation of a cracked windshield on defendant’s vehicle prior to the current opinion provided a reasonable and articulable suspicion for the officer to initiate a traffic stop. State v. Bolme, 2020 ND 255, 952 N.W.2d 75, 2020 N.D. LEXIS 258 (N.D. 2020).

Collateral References.

Motor vehicle operator’s liaiblity for accident occurring while driving with vision obscured by smoke or steam, 32 A.L.R.4th 933.

Law Reviews.

Article: Constitutional Roadkill in the Courts: Looking To the Legislature To Protect North Dakota Motorists Against Almost Unlimited Police Power To Stop and Investigate Crime, see 86 N.D. L. Rev. 1 (2010).

39-21-40. Restrictions as to tire equipment.

  1. Every solid rubber tire on a vehicle must have rubber on its entire traction surface at least one inch [2.54 centimeters] thick above the edge of the flange of the entire periphery.
  2. No person may operate or move on any highway any motor vehicle, trailer, or semitrailer having any metal tire in contact with the roadway.
  3. No tire on a vehicle moved on a highway may have on its periphery any block, stud, flange, cleat, or spike or any other protuberance of any material other than rubber which projects beyond the tread of the traction surface of the tire, except that it is permissible to use farm machinery with tires having protuberances which will not injure the highway, and except also that it is permissible to use tire chains of reasonable proportions. It is also permissible to use, from October fifteenth to April fifteenth, pneumatic tires which have metal studs which do not project more than one-sixteenth of an inch [1.59 millimeters] beyond the tread of the traction surface of the tire, except that it is permissible to use such tires on schoolbuses at any time during the year.

Source:

S.L. 1963, ch. 283, § 19; 1965, ch. 263, § 2; 1967, ch. 320, § 1; 1979, ch. 432, § 1.

Collateral References.

Blowout or other failure of tire, liability of motor vehicle owner or operator for accident occasioned by, 24 A.L.R.2d 161.

Injuries to passengers from accident occasioned by blowout or other failure of tire, liability of motor carrier for, 44 A.L.R.2d 835.

39-21-41. Safety glazing material in motor vehicles.

  1. No person may sell any new motor vehicle, nor may any new motor vehicle be registered, unless it is equipped with safety glazing material of a type approved by the department wherever glazing material is used in doors, windows, and windshields. The foregoing provisions shall apply to all passenger-type motor vehicles, including passenger buses and schoolbuses, but in respect to trucks, including truck tractors, the requirements as to safety glazing material apply to all glazing material used in doors, windows, and windshields in the drivers’ compartment.
  2. The term “safety glazing materials” means glazing materials so constructed, treated, or combined with other materials as to reduce substantially, in comparison with ordinary sheet glass or plate glass, the likelihood of injury to persons by objects from exterior sources or by these safety glazing materials when they may be cracked or broken.
  3. The department shall maintain a list of types of glazing material by name approved by it as meeting the requirements of this section and may not register after January 1, 1964, any motor vehicle which is subject to the provisions of this section unless it is equipped with an approved type of safety glazing material, and it shall thereafter suspend the registration of any motor vehicle subject to this section which it finds is not equipped until it is made to conform to the requirements of this section. The requirements of this section do not apply to antique automobiles licensed under chapter 39-04.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 27.

39-21-41.1. Safety belts.

  1. Every passenger car manufactured or assembled after January 1, 1965, must be equipped with lapbelt assemblies for use in the driver’s and one other front seating position.
  2. All motor vehicles manufactured after January 1, 1968, must be equipped with any lapbelt or shoulder belt required at the time the vehicle was manufactured by standards of the United States department of transportation. Nothing in this subsection affects the requirement in subsection 1 for a lapbelt in the driver’s seating position.
  3. The department may except specified types of motor vehicles or seating positions within any motor vehicle from the requirements imposed by subsections 1 and 2 when compliance would be impractical.
  4. No person may install, distribute, have for sale, offer for sale, or sell any belt for use in motor vehicles unless it meets current minimum standards and specifications of the United States department of transportation.
  5. Every owner shall maintain belts and assemblies required by this section in proper condition and in a manner that will enable occupants to use them.

Source:

S.L. 1965, ch. 283, § 1; 1979, ch. 431, § 28.

Collateral References.

Liability under state law for injuries resulting from defective automobile seatbelt, shoulder harness, or restraint system, 48 A.L.R.5th 1.

39-21-41.2. Child restraint devices — Evidence.

  1. If a child, under eight years of age, is present in a motor vehicle, that motor vehicle must be equipped with at least one child restraint system for the child. However, a child under the age of eight who is at least fifty-seven inches [1.45 meters] tall is not required to use a child restraint system, but must be correctly buckled in a safety belt. The child restraint system must meet the standards adopted by the United States department of transportation for those systems [49 CFR 571.213]. While the motor vehicle is in motion, the child must be properly secured in the child restraint system in accordance with the manufacturer’s instructions. While the motor vehicle is moving, each child of eight through seventeen years of age who is in the motor vehicle must be in an approved child restraint system in accordance with the manufacturer’s instructions or correctly buckled in a safety belt. Use of child restraint systems and safety belts is not required in motor vehicles that were not equipped with safety belts when manufactured. If a child is being transported in an emergency situation, this section does not apply.
  2. Violation of this section is not, in itself, evidence of negligence. The fact of a violation of this section is not admissible in any proceeding other than one charging the violation.

Source:

S.L. 1983, ch. 446, § 1; 1985, ch. 444, § 1; 1987, ch. 482, § 1; 1991, ch. 431, § 1; 1991, ch. 432, § 1; 1999, ch. 344, § 3; 2005, ch. 340, § 6; 2017, ch. 274, § 1, effective August 1, 2017.

Collateral References.

Failure to use or misuse of automobile child safety seat or restraint system as affecting recovery for personal injury or death, 46 A.L.R.5th 557.

39-21-41.3. Use of safety belts required in certain motor vehicles — Enforcement. [Repealed]

Deleted by R.M. December 5, 1989.

Note.

Section 39-21-41.3 was enacted by S.L. 1989, ch. 464, section 2, and disapproved by R.M. December 5, 1989.

39-21-41.4. Use of safety belts required in certain motor vehicles — Enforcement — Evidence.

Subject to the limitations of this section and section 39-21-41.5, a driver may not operate upon a highway a motor vehicle designed for carrying fewer than eleven passengers, which was originally manufactured with safety belts unless each front seat occupant is wearing a properly adjusted and fastened safety belt. This section does not apply to a child in a child restraint or safety belt in accordance with section 39-21-41.2; to drivers of implements of husbandry; to operators of farm vehicles as defined in subsection 5 of section 39-04-19; to rural mail carriers while on duty delivering mail; to an occupant with a medical or physically disabling condition that prevents appropriate restraint in a safety belt, if a qualified physician, physician assistant, or advanced practice registered nurse states in a signed writing the nature of the condition and the reason restraint is inappropriate; or when all front seat safety belts are in use by other occupants. A physician, physician assistant, or advanced practice registered nurse who, in good faith, provides a statement that restraint would be inappropriate is not subject to civil liability. A violation for not wearing a safety belt under this section is not, in itself, evidence of negligence. The fact of a violation of this section is not admissible in any proceeding other than one charging the violation.

Source:

S.L. 1993, ch. 385, § 2; 1995, ch. 384, § 1; 2003, ch. 334, § 1; 2017, ch. 274, § 2, effective August 1, 2017.

Note.

Chapter 385, S.L. 1993, which enacted this section, was referred and approved on June 14, 1994, at the primary election, and became effective July 14, 1994, under N.D. Const., Art. III, § 8.

Law Reviews.

Note: North Dakota’s Seat Belt Defense: It’s Time For North Dakota To Statutorily Adopt the Doctrine of Avoidable Consequences, 87 N.D. L. Rev. 139 (2011).

39-21-41.5. Secondary enforcement.

A peace officer may not issue a citation for a violation of section 39-21-41.4 unless the officer lawfully stopped or detained the driver of the motor vehicle for another violation. Drivers’ license points may not be assessed against any person for violation of section 39-21-41.4.

Source:

S.L. 1993, ch. 385, § 3.

Note.

Chapter 385, S.L. 1993, which enacted this section, was referred and approved on June 14, 1994, at the primary election, and became effective July 14, 1994, under N.D. Const., Art. III, § 8.

Notes to Decisions

Lawful Stop of Driver.

Because the deputy lawfully stopped the driver to investigate a possible registration violation, the deputy could properly detain and ticket the driver for a seatbelt violation he observed while verifying that the driver had a valid and properly displayed registration sticker. United States v. Peltier, 217 F.3d 608, 2000 U.S. App. LEXIS 15112 (8th Cir. N.D. 2000).

Law Reviews.

Viewpoint: Atwater in North Dakota: Soccer Moms Beware, Sometimes, 78 N.D. L. Rev. 467 (2002).

Article: Constitutional Roadkill in the Courts: Looking To the Legislature To Protect North Dakota Motorists Against Almost Unlimited Police Power To Stop and Investigate Crime, see 86 N.D. L. Rev. 1 (2010).

39-21-42. Certain vehicles to carry flares or other warning devices.

  1. No person may operate any motor truck, passenger bus, or truck tractor, or any motor vehicle towing a housetrailer, upon any highway outside the corporate limits of municipalities at any time from a half hour after sunset to a half hour before sunrise unless there is carried in the vehicle the following equipment except as provided in subsection 2:
    1. At least three flares or three red electric lanterns or three portable red emergency reflectors, each of which must be capable of being seen and distinguished at a distance of not less than six hundred feet [182.88 meters] under normal atmospheric conditions at nighttime. No flare, fusee, electric lantern, or cloth warning flag may be used for the purpose of compliance with the requirements of this section unless it is of a type which has been submitted to the department and approved by it. No portable reflector unit may be used for the purpose of compliance with the requirements of this section unless it meets the requirements of the national highway traffic safety administration motor vehicle safety standard number 125 or unless it is so designed and constructed as to include two reflecting elements one above the other, each of which must be capable of reflecting red light clearly visible from all distances within six hundred feet [182.88 meters] to one hundred feet [30.48 meters] under normal atmospheric conditions at night when directly in front of lawful lower beams of headlamps, and unless it is of a type which has been submitted to the department and approved by it.
    2. At least three red-burning fusees unless red electric lanterns or red portable emergency reflectors are carried.
    3. At least two red-cloth flags, not less than twelve inches [30.48 centimeters] square, with standards to support such flags.
  2. No person may operate at the time and under conditions stated in subsection 1 any motor vehicle used for the transportation of explosives, any cargo tank truck used for the transportation of flammable liquids or compressed gases, or any motor vehicle using compressed gas as a fuel unless there is carried in the vehicle three red electric lanterns or three portable red emergency reflectors meeting the requirements of subsection 1, and there shall not be carried in the vehicle any flare, fusee, or signal produced by flame.

Source:

S.L. 1963, ch. 283, § 19; 1975, ch. 361, § 1; 1979, ch. 431, § 29.

Notes to Decisions

Snowbound Truck.

The abandonment of a motor truck stuck in a snowdrift upon the traveled portion of a highway, within five hundred feet of a hillcrest, without a warning signal was negligence. Gravseth v. Farmers Union Oil Co., 108 N.W.2d 785, 1961 N.D. LEXIS 72 (N.D. 1961).

Collateral References.

Negligence of driver of motor vehicle parked or stopped on highway without flares, 67 A.L.R.2d 12.

39-21-43. Display of warning devices when vehicle disabled.

  1. Whenever any truck, bus, truck tractor, trailer, semitrailer, or pole trailer eighty inches [20.32 decimeters] or more in overall width or thirty feet [91.44 decimeters] or more in overall length is stopped upon a roadway or adjacent shoulder, the driver shall immediately actuate vehicular hazard warning signal lamps meeting the requirements of this chapter. The lamps need not be displayed by a vehicle parked lawfully in an urban district, or stopped lawfully to receive or discharge passengers, or stopped to avoid conflict with other traffic or to comply with the directions of a police officer or an official traffic-control device, or while the devices specified in subsections 2 through 8 are in place.
  2. Whenever any vehicle of a type referred to in subsection 1 is disabled, or stopped for more than ten minutes, upon a roadway outside of an urban district at any time when lighted lamps are required, the driver of the vehicle shall display the following warning devices except as provided in subsection 3:
    1. A lighted fusee, a lighted red electric lantern, or a portable red emergency reflector must immediately be placed at the traffic side of the vehicle in the direction of the nearest approaching traffic.
    2. As soon thereafter as possible but in any event within the burning period of the fusee (fifteen minutes), the driver shall place three liquid-burning flares (pot torches), or three lighted red electric lanterns, or three portable red emergency reflectors on the roadway in the following order:
      1. One, approximately one hundred feet [30.48 meters] from the disabled vehicle in the center of the lane occupied by the vehicle and toward traffic approaching in that lane.
      2. One, approximately one hundred feet [30.48 meters] in the opposite direction from the disabled vehicle and in the center of the traffic lane occupied by such vehicle.
      3. One at the traffic side of the disabled vehicle not less than ten feet [30.48 decimeters] rearward or forward thereof in the direction of the nearest approaching traffic. If a lighted red electric lantern or a red portable emergency reflector has been placed at the traffic side of the vehicle in accordance with paragraph 1, it may be used for this purpose.
  3. Whenever any vehicle referred to in this section is disabled, or stopped for more than ten minutes, within five hundred feet [152.4 meters] of a curve, hillcrest, or other obstruction to view, the warning device in the direction must be so placed as to afford ample warning to other users of the highway, but in no case less than one hundred feet [30.48 meters] nor more than five hundred feet [152.4 meters] from the disabled vehicle.
  4. Whenever any vehicle of a type referred to in this section is disabled, or stopped for more than ten minutes, upon any roadway of a divided highway during the time lighted lamps are required, the appropriate warning devices prescribed in subsections 2 and 3 must be placed as follows: one at a distance of approximately two hundred feet [60.96 meters] from the vehicle in the center of the lane occupied by the stopped vehicle and in the direction of traffic approaching in that lane; one at a distance of approximately one hundred feet [30.48 meters] from the vehicle, in the center of the lane occupied by the vehicle and in the direction of traffic approaching in that lane; one at the traffic side of the vehicle and approximately ten feet [30.48 decimeters] from the vehicle in the direction of the nearest approaching traffic.
  5. Whenever any motor vehicle used in the transportation of explosives or any cargo tank truck used for the transportation of any flammable liquid or compressed gas is disabled, or stopped for more than ten minutes, at any time and place mentioned in subsection 2, 3, or 4, the driver of the vehicle shall immediately display red electric lanterns or portable red emergency reflectors in the same number and manner specified in subsection 2, 3, or 4. Flares, fusees, or signals produced by flame may not be used as warning devices for vehicles of the type mentioned in this subsection nor for vehicles using compressed gas as a fuel.
  6. The warning devices described in subsections 2 through 5 need not be displayed where there is sufficient light to reveal persons and vehicles within a distance of one thousand feet [304.8 meters].
  7. Whenever any vehicle described in this section is disabled, or stopped for more than ten minutes, upon a roadway outside of an urban district or upon the roadway of a divided highway at any time when lighted lamps are not required by section 39-21-01 the driver of the vehicle shall display two red flags as follows:
    1. If traffic on the roadway moves in two directions, one flag shall be placed approximately one hundred feet [30.48 meters] to the rear and one flag approximately one hundred feet [30.48 meters] in advance of the vehicle in the center of the lane occupied by the vehicle.
    2. Upon a one-way roadway, one flag must be placed approximately one hundred feet [30.48 meters] and one flag approximately two hundred feet [60.96 meters] to the rear of the vehicle in the center of the lane occupied by the vehicle.
  8. When any vehicle described in this section is stopped entirely off the roadway and on an adjacent shoulder at any time and place mentioned in this section, the warning devices must be placed, as nearly as practicable, on the shoulder near the edge of the roadway.
  9. The flares, fusees, red electric lanterns, portable red emergency reflectors, and flags to be displayed as required in this section must conform with the applicable requirements of section 39-21-42.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 30.

Collateral References.

Negligence or contributory negligence of driver or occupant of motor vehicle parked or stopped on highway without flares, 67 A.L.R.2d 12.

Liability of motorist engaged about stalled or disabled vehicle on or near highway, 27 A.L.R.3d 12.

39-21-44. Vehicle transporting explosives or hazardous materials — Administrative procedure and judicial review.

Any person operating any vehicle transporting any explosive or hazardous material as a cargo or part of a cargo upon a highway shall comply with this section.

  1. The vehicle must be equipped with at least one fire extinguisher, filled and ready for immediate use, and placed at a convenient point on the vehicle.
  2. The superintendent of the state highway patrol shall adopt rules for the safe transportation of hazardous materials. Rules must duplicate or be consistent with current hazardous materials regulations of the United States department of transportation. The superintendent of the state highway patrol may adopt the hazardous materials regulations by reference and any adoption must be construed to incorporate amendments as may be made from time to time.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 31; 1981, ch. 336, § 23; 1983, ch. 447, § 1; 1995, ch. 385, § 1; 1997, ch. 339, § 2.

39-21-44.1. Vehicle to be constructed to prevent sifting or leaking loads.

No vehicle may be driven or moved on any highway unless it is so constructed or loaded as to prevent its contents from dropping, sifting, leaking, or otherwise escaping therefrom, except that sand may be dropped for the purpose of securing traction, or water or other substance may be sprinkled on a roadway in cleaning or maintaining the roadway. No person may operate on any highway any vehicle with any load unless the load and any covering thereon is securely fastened so as to prevent said covering or load from becoming loose, detached, or in any manner a hazard to other users of the highway.

Source:

S.L. 1963, ch. 283, § 19.

39-21-44.2. Drawbar or connection between vehicles — Precautions required.

The drawbar or other coupling device between vehicles, one of which is towing or drawing the other on a highway, must include safety chains connecting the vehicles. The drawbar or other coupling device, and the safety chains, must be of a design, strength, and construction so as to prevent the unintentional uncoupling of the vehicles. The safety chain requirement of this section does not apply to:

  1. A fifth-wheel coupling device; or
  2. A vehicle towing an implement of husbandry or an implement of husbandry towing a vehicle, when operated at a speed not exceeding twenty-five miles [40.23 kilometers] per hour.

Source:

S.L. 1963, ch. 283, § 19; 1985, ch. 445, § 1; 1993, ch. 396, § 2.

39-21-45. Air-conditioning equipment.

  1. The term “air-conditioning equipment”, as used or referred to in this section, means mechanical vapor compression refrigeration equipment which is used to cool the driver’s or passenger compartment of any motor vehicle.
  2. Air-conditioning equipment must be manufactured, installed, and maintained with due regard for the safety of the occupants of the vehicle and the public and may not contain any refrigerant which is toxic to persons or which is flammable, unless the refrigerant is included in the list published by the United States environmental protection agency as a safe alternative motor vehicle air-conditioning substitute for chlorofluorocarbon-12, pursuant to 42 U.S.C. 7671k(c).
  3. The department may adopt and enforce safety requirements, rules, and specifications consistent with the requirements of this section applicable to equipment which must correlate with and, so far as possible, conform to the current recommended practice or standard applicable to air-conditioning equipment approved by the society of automotive engineers.
  4. No person may have for sale, offer for sale, sell, or equip any motor vehicle with any air-conditioning equipment unless it complies with the requirements of this section.
  5. No person may operate on any highway any motor vehicle equipped with any air-conditioning equipment unless the equipment complies with the requirements of this section.

Source:

S.L. 1963, ch. 283, § 19; 1979, ch. 431, § 32; 2011, ch. 290, § 1.

39-21-45.1. Modification of motor vehicle.

  1. An individual who operates a registered motor vehicle on a highway may not modify that vehicle unless the modification meets the following requirements:
    1. Any modifying equipment must meet any other requirement applicable to a vehicle under chapter 39-21.
    2. If tires placed on a motor vehicle have a diameter greater than that of the tires on the motor vehicle as manufactured, those tires must be branded with a United States department of transportation tire identification number.
    3. The maximum body height permitted for a motor vehicle is forty-two inches [106.68 centimeters]. Measurement of body height is made from a level ground surface to the floor of the cargo area.
  2. An individual may not operate a registered motor vehicle on a highway unless the motor vehicle is equipped with front and rear bumpers. The height of the bumper must not exceed twenty-seven inches [68.58 centimeters] and this measurement is made from a level ground surface to the highest point on the bottom of the bumper. A horizontal drop bumper may be used to comply with this subsection and must be at least three inches [7.62 centimeters] in vertical width; extend the entire horizontal body width; and be horizontal, load bearing, and attached to the vehicle frame to effectively transfer impact when engaged.
  3. Vehicles owned by law enforcement agencies, the military, firefighting agencies, and ambulances may be modified without regard to this section.
  4. The director may adopt rules to implement this section.

Source:

S.L. 1963, ch. 264, § 1; 1975, ch. 362, § 1; 1985, ch. 431, § 2; 2015, ch. 264, § 6, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 6 of chapter 264, S.L. 2015 became effective August 1, 2015.

Law Reviews.

Viewpoint: Atwater in North Dakota: Soccer Moms Beware, Sometimes, 78 N.D. L. Rev. 467 (2002).

39-21-46. Scope and effect of equipment requirements — Penalty.

  1. It is unlawful for any person to drive or move, or for the owner to cause or knowingly permit to be driven or moved, on any highway any vehicle or combination of vehicles which the actor knows does not contain those parts or is not at all times equipped with lamps and other equipment in proper condition and adjustment as required in this chapter, or which the actor knows is equipped in any manner in violation of this chapter, or for any person to do any act forbidden or fail to perform any act required under this chapter for which a fee or penalty for its violation is not otherwise provided.
  2. A person who drives or moves, or any owner who causes or knowingly permits to be driven or moved upon a highway, any vehicle or combination of vehicles which that person knows is in such unsafe condition as to endanger a person is guilty of an infraction.
  3. The superintendent of the state highway patrol shall, under chapter 28-32, adopt necessary rules concerning the safe operation of motor vehicles and when and how motor carrier audits or inspections will be conducted. The rules must duplicate or be consistent with current motor carrier safety regulations of the United States department of transportation. The superintendent of the state highway patrol may adopt the motor carrier safety regulations by reference, and any adoption must be construed to incorporate amendments as may be made from time to time. A violation of rules adopted under this subsection is a noncriminal violation. A person who fails or refuses to comply with these rules must be assessed a fee in the amount set forth in section 39-06.1-06 for each violation.
  4. Nothing contained in this chapter may be construed to prohibit the use of additional parts and accessories on any vehicle not inconsistent with the provisions of this chapter.
  5. The provisions of this chapter with respect to equipment on vehicles do not apply to implements of husbandry, road machinery, road rollers, or farm tractors except as specifically made applicable.
  6. The provisions of this chapter with respect to equipment required on vehicles do not apply to motorcycles or motor-driven cycles, except as specifically made applicable.
  7. The provisions of this chapter and regulations of the department do not apply to vehicles moved solely by human power, except as specifically made applicable.

Source:

S.L. 1963, ch. 283, § 19; 1973, ch. 301, § 30; 1979, ch. 431, § 33; 1985, ch. 431, § 3; 1987, ch. 443, § 2; 1989, ch. 463, § 7; 2001, ch. 341, §§ 8, 9; 2003, ch. 317, § 8.

39-21-47. Distress signals for handicapped drivers — Penalty for misuse. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

39-21-48. Crash helmets required for operators of and passengers on motorcycles. [Repealed]

Repealed by S.L. 1975, ch. 348, § 17.

Note.

For present provisions, see § 39-10.2-06.

39-21-49. Number of riders on motorcycles limited. [Repealed]

Repealed by S.L. 1975, ch. 348, § 17.

Note.

For present provisions, see § 39-10.2-02.

39-21-50. Slow-moving vehicles required to display identification emblem — Penalty.

All implements of husbandry, as defined in section 39-01-01, and machinery, including all road construction machinery, designed for operation at a speed of twenty-five miles [40.23 kilometers] an hour or less, must display either a triangular slow-moving vehicle emblem or a rotating or flashing amber light, as authorized for class B emergency vehicles, whenever traveling along the roadway on any county, state, federal highway, or city street in the state of North Dakota. The emblem or light must be mounted so as to be visible from a distance of not less than five hundred feet [152.4 meters] to the rear. The director shall adopt standards and specifications for the design and position of mounting the slow-moving vehicle emblem and light. The standards and specifications for slow-moving vehicle emblems referred to in this section must correlate with and, so far as possible, conform with those approved by the American society of agricultural engineers. No vehicle, other than those specified in this section, must display a slow-moving vehicle emblem, and its use on any type of stationary object is prohibited. Any person who fails or refuses to comply with the provisions of this section must be assessed a fee of twenty dollars for each offense.

Source:

S.L. 1969, ch. 360, §§ 1, 2; 1973, ch. 301, § 31; 1975, ch. 363, § 1; 1979, ch. 431, § 34.

39-21-51. Alteration of odometers or other mileage recorders, hour meters on tachometers, or other hour recorders — Penalty.

A person may not willfully, as defined in section 12.1-02-02, alter a motor vehicle odometer or other mileage recorder, hour meter on tachometer, or other hour recorder, or offer for sale or sell a motor vehicle knowing the odometer or other mileage recorder has been altered, for the purpose of deceiving another. Violation of this section is a class C felony if the person has previously been convicted of violating this section, or if the person has violated this section with respect to more than one vehicle, and a class B misdemeanor in all other cases.

Source:

S.L. 1973, ch. 316, § 1; 1975, ch. 106, § 444; 1985, ch. 446, § 1; 1993, ch. 381, § 2.

Notes to Decisions

Evidence.

Trial court did not err in denying defendant’s motion for acquittal where there was sufficient evidence that defendant offered for sale a vehicle knowing the odometer had been altered; when defendant purchased the vehicle, it had 26,124 miles on it, but when the vehicle was inspected, it had 4,983 miles on it. State v. Sabo, 2007 ND 193, 742 N.W.2d 812, 2007 N.D. LEXIS 190 (N.D. 2007).

Collateral References.

Validity, Construction and Application of State Laws Concerning, Relating to, or Encompassing Disclosure of and Tampering with Motor Vehicle Odometer — Validity of Statutory Provisions, Construction of Statute and Particular Terms, and Remedies. 66 A.L.R.6th 351.

39-21-52. Exemption for certain street rod motor vehicles.

The provisions of this chapter or chapter 37-12-02 of the North Dakota Administrative Code relating to bumpers, tires, and fenders do not apply to street rod motor vehicles. However, a street rod must have all equipment, in operating condition, which was specifically required by law as a condition for its sale when it was first manufactured. A street rod is a modernized motor vehicle which was manufactured before 1949 by a recognized manufacturer and which retains the general appearance and original body configuration as manufactured or a motor vehicle designed and manufactured to resemble such a motor vehicle. A street rod may have improved modifications to the body, chassis, engine, brakes, power train, steering, and suspension systems either by modifying the original equipment or replacing original parts with fabricated parts or those taken from other existing vehicles. The director may adopt rules to implement this section.

Source:

S.L. 1987, ch. 483, § 1.

39-21-53. Retractable axle control requirements.

  1. For a motor vehicle manufactured after July 31, 2005, variable load suspension or retractable axles, or both, raised or lowered by air, hydraulic, or other pressure must have the lock or pressure regulator valve, or both, positioned outside the cab and inaccessible from the driver’s compartment if there is more than one variable load suspension axle or retractable axle, or a combination of each.
  2. The control to lift and lower a retractable or variable load suspension axle may be accessible in the driver’s compartment, but also may not function as the pressure control device unless allowed by subsection 1.

Source:

S.L. 2005, ch. 331, § 6.

39-21-54. Requirement for steerable, castering, or pivoting axles.

A single unit vehicle or any vehicle in combination may not be equipped with more than four axles unless the additional axles are steerable, castering, or pivoting axles.

Source:

S.L. 2005, ch. 331, § 6.

39-21-55. Exemption from rear-end protection requirements. [Repealed]

Repealed by S.L. 2009, ch. 341, § 1.

39-21-56. Definitions — Prohibition on counterfeit and nonfunctional airbag — Penalty.

  1. As used in this section:
    1. “Airbag” means an inflatable occupant restraint system device in a motor vehicle which is part of a supplemental restraint system.
    2. “Counterfeit supplemental restraint system component” means a replacement supplemental restraint system component that displays a mark identical, or substantially similar to, the genuine mark of a motor vehicle manufacturer or a supplier of parts to the manufacturer of a motor vehicle without authorization from that manufacturer or supplier.
    3. “Nonfunctional airbag” means a replacement airbag that:
      1. Was previously deployed or damaged;
      2. Has an electric fault that is detected by the motor vehicle’s airbag diagnostic systems when the installation procedure is completed and the motor vehicle is returned to the customer who requested the work to be performed or when ownership is intended to be transferred;
      3. Includes a part or object, including a supplemental restraint system component, which is installed in a motor vehicle to mislead the owner or operator of the motor vehicle into believing a functional airbag has been installed; or
      4. Is subject to the prohibitions of 49 U.S.C. 30120(j).
    4. “Supplemental restraint system” means a passive inflatable motor vehicle crash protection system designed for use in conjunction with active restraint systems as defined in title 49, Code of Federal Regulations, part 571, section 208, which includes one or more airbags and all components required to ensure an airbag works as designed by the motor vehicle manufacturer including:
      1. Operating as designed in the event of a crash; and
      2. Is designed in accordance with federal motor vehicle safety standards of the specific make, model, and year of the motor vehicle in which the airbag is or will be installed.
  2. A person may not intentionally or knowingly:
    1. Manufacture, import, install, reinstall, distribute, sell, or offer for sale any device intended to replace a supplemental restraint system component in any motor vehicle if the device is a counterfeit supplemental restraint system component, nonfunctional airbag, or a device that does not meet the federal motor vehicle safety standards as provided under title 49, Code of Federal Regulations, part 571, section 208.
    2. Sell, install, or reinstall in a motor vehicle, any device that causes the motor vehicle’s diagnostic systems to fail to warn when the motor vehicle is equipped with a counterfeit supplemental restraints system component or nonfunctional airbag, or when an airbag is not installed.
  3. Subsection 2 does not prohibit a motor vehicle dealer, repair facility, manufacturer, or other entity from taking action to collect and dispose of used or recalled supplemental restraint system components in accordance with federal law.
  4. A person that violates subsection 2 is guilty of a class A misdemeanor.

Source:

S.L. 2019, ch. 332, § 1, effective August 1, 2019.

CHAPTER 39-21.1 Random Motor Vehicle Maintenance [Repealed]

[Repealed by S.L. 1981, ch. 401, § 1]

CHAPTER 39-22 Motor Vehicle Dealer Licensing

39-22-01. Dealer defined. [Repealed]

Repealed by S.L. 1987, ch. 439, § 2.

39-22-02. Motor vehicle dealer’s license — Fees — Additional number plates. [Repealed]

Repealed by S.L. 2001, ch. 337, § 19.

39-22-03. Motorcycle dealer’s license — Fees. [Repealed]

Repealed by S.L. 1983, ch. 451, § 2.

39-22-04. Grounds for denial, suspension, cancellation, or revocation of dealer’s license.

The director may deny an application for a dealer’s license or suspend, revoke, or cancel a dealer’s license after it has been granted for making any material misstatement by an applicant in the application for the license; willfully failing to comply with the provisions of this chapter or with any rule adopted by the director; knowingly permitting any person to sell or exchange, or offer or attempt to sell or exchange any motor vehicle except for the licensed motor vehicle dealer by whom the person is employed; willfully violating a law relating to the sale, distribution, or financing of motor vehicles; having ceased to have an established place of business; or having violated any state or federal law relating to alteration of odometers or vehicle identification number.

Source:

S.L. 1963, ch. 285, § 4; 1985, ch. 415, § 2; 1985, ch. 446, § 2; 2001, ch. 337, § 15; 2007, ch. 341, § 1.

Cross-References.

Hearing on alleged violation by dealer, suspension of license, see § 39-01-16.

Notes to Decisions

Suspension of Dealer’s License.

North Dakota Department of Transportation had authority under N.D.C.C. § 39-22-04 to suspend the car dealer’s motor vehicle dealer’s license for willfully violating N.D.C.C. § 39-04-17, it had the authority to consider past suspensions, and the finding that the dealer willfully violated § 39-04-17 was supported by the evidence. Sample v. N.D. DOT, 2009 ND 198, 775 N.W.2d 707, 2009 N.D. LEXIS 209 (N.D. 2009).

39-22-05. Bond required.

Before the issuance of a motor vehicle dealer’s license, as provided by law, the applicant for the license shall furnish a continuous surety bond executed by the applicant as principal and executed by a surety company, licensed and qualified to do business within the state of North Dakota, which bond must run to the state of North Dakota, be in the amount of twenty-five thousand dollars and be conditioned upon the faithful compliance by the applicant as a dealer, if the license is issued to the dealer, that such dealer will comply with all of the statutes of the state of North Dakota regulating or being applicable to the business of the dealer as a dealer in motor vehicles, and indemnifying any person dealing or transacting business with the dealer in connection with any motor vehicle from any loss or damage occasioned by the failure of the dealer to comply with any of the provisions of this title, including the furnishing of a proper and valid certificate of title to the motor vehicle involved in any such transaction, and that the bond shall be filed with the director prior to the issuance of license provided by law. The aggregate liability of the surety of all persons, however, may in no event exceed the amount of the bond. Any third party sustaining injury within the terms of the bond may proceed against the principal and surety without making the state a party to the proceedings. The bond may be canceled by the surety, as to future liability, by giving written notice by certified mail, addressed to the principal at the address stated in the bond, and to the department. Thirty days after the mailing of the notice, the bond is null and void as to any liability thereafter arising. The surety remains liable, subject to the terms, conditions, and provisions of the bond until the effective date of the cancellation.

Source:

S.L. 1963, ch. 285, § 5; 1969, ch. 361, § 1; 1983, ch. 448, § 2; 1989, ch. 483, § 1; 2005, ch. 338, § 3.

Notes to Decisions

Action on Bond.

Where bank made loan to dealer under security agreement whereby dealer was not to deliver certificate of title or origin to any purchaser without first paying a percentage of sale price to bank, bank was entitled to recover the percentage from dealer’s surety in event of sale in violation of agreement. State ex rel. First Am. Bank & Trust Co. v. General Ins. Co., 179 N.W.2d 123, 1970 N.D. LEXIS 124 (N.D. 1970).

Exoneration.

Bank which financed auto dealer’s inventory owed duty to dealer’s surety, which was bank’s equitable subrogee, to protect its security interests in inventory by perfecting them; N.D.C.C. § 41-09-23 rather than title registration statutes applies to automobiles held as inventory by dealers; absent clear showing of actual damage incurred however, bank’s failure to perfect security interests did not exonerate surety from duty to pay under its bond. Ramsey Nat'l Bank & Trust Co. v. Suburban Sales & Serv., 231 N.W.2d 732, 1975 N.D. LEXIS 180 (N.D. 1975).

39-22-05.1. Disposition of fees.

Fees from registration of dealers and fees collected from dealers found in violation of this chapter must be deposited with the state treasurer, credited to the dealer enforcement fund, and used exclusively for enforcement of this chapter.

Source:

S.L. 1979, ch. 427, § 2; 2001, ch. 337, § 16; 2007, ch. 343, § 2.

39-22-05.2. When bid bonds not required in bids to state or political subdivisions.

A person who submits a bid to the state, any of its agencies, or any of its political subdivisions to sell any type of motor vehicle is not required to submit a bidder’s bond or a certified or cashier’s check if that person is already bonded pursuant to section 39-22-05. If the buyer requires a performance bond, then within ten days of the awarding of the contract, the successful bidder shall submit a performance bond to the appropriate state agency or political subdivision in an amount equal to the contract price.

Source:

S.L. 1979, ch. 433, § 1; 1981, ch. 142, § 2; 1985, ch. 447, § 1.

39-22-06. Motor vehicle lots — Location.

A licensed dealer may establish secondary motor vehicle lots in the conduct of the dealer’s business within five miles [8.05 kilometers] of the dealer’s established place of business. Secondary lots must be identified as a part of the licensed dealer’s operation with a sign displaying the name and telephone number of the licensed dealer. The sign must be at least thirty-two square feet [2.97 square meters] in size, contain the name of the dealership in letters at least ten inches [25.4 centimeters] high, and be clearly visible from the street. A licensed dealer may not display vehicles except on the dealer’s primary and secondary lots or as otherwise permitted in this chapter. The department may assess a person violating this section a one hundred dollar fee for a first violation and a two hundred dollar fee for a second violation within two years of the first violation. The department shall assess a fee of at least five hundred dollars but not more than two thousand dollars for a third or subsequent violation within five years of the first violation.

Source:

S.L. 1963, ch. 285, § 6; 1983, ch. 448, § 3; 1987, ch. 484, § 2; 2001, ch. 337, § 17; 2007, ch. 341, § 2.

39-22-07. Dealer permitting license to be used by another dealer — License revoked — Penalty. [Repealed]

Repealed by S.L. 2001, ch. 337, § 19.

39-22-07.1. Motor vehicle sales prohibited on Sunday — Penalty.

A motor vehicle dealer may not sell a motor vehicle on Sunday. A violation of this section is a class B misdemeanor.

Source:

S.L. 1991, ch. 433, § 1.

39-22-08. Dealers to furnish information to director. [Repealed]

Repealed by S.L. 2001, ch. 337, § 19.

39-22-09. Dealer to file list of used motor vehicles with registrar — Fees paid on used cars by dealer — Delinquency — Penalty. [Repealed]

Repealed by S.L. 1977, ch. 369, § 1.

39-22-10. Powers of the director.

In addition to other powers provided by law, the director has the following powers and duties which must be exercised in conformity with this chapter:

  1. To cancel, revoke, or suspend a dealer’s license as provided for in section 39-22-04.
  2. To prescribe rules and regulations not inconsistent with this chapter governing the application for dealer’s licenses and the cancellation or suspension or revocation of dealer’s licenses.
  3. To employ and pay such persons as the director may deem necessary to inspect dealers in this state, investigate dealers for the information of the director, to procure evidence in connection with any prosecution or other action to suspend, revoke, or cancel a dealer’s license in relation to any matter in which the director has any duty to perform.

Source:

S.L. 1963, ch. 285, § 10.

39-22-11. Examination of books and records.

The director or any duly authorized representative may inspect the pertinent books, letters, records, and contracts of any licensed motor vehicle dealer or any other person relating to any complaint made against such dealer or person and held to be in violation of any of the provisions of this title. In addition, any duly authorized representative of the department may inspect the records of any licensed dealer to verify that fees collected for the department have been properly remitted.

Source:

S.L. 1963, ch. 285, § 11; 1987, ch. 484, § 4; 2001, ch. 337, § 18.

39-22-12. Officers to administer chapter — House car dealer, manufacturer, and distributor exemption.

The director and any duly authorized representative are responsible for the administration of this chapter. This chapter does not apply to house car dealers, manufacturers, and distributors.

Source:

S.L. 1963, ch. 285, § 12; 1987, ch. 484, § 5; 2001, ch. 331, § 4.

39-22-13. Penalty for violation of chapter.

Any person violating any of the provisions of this chapter for which another penalty is not specifically provided is guilty of a class B misdemeanor.

Source:

S.L. 1963, ch. 285, § 13; 1975, ch. 106, § 446.

Cross-References.

Classification of offenses, penalties, see § 12.1-32-01.

39-22-14. Motor vehicle dealer license — Fees — Penalty.

A person may not engage in the business of buying, selling, or exchanging of motor vehicles without possessing a current motor vehicle dealer license. A person may not advertise or otherwise hold out to the public as engaging in the buying, selling, or exchanging of motor vehicles for resale without possession of a current new motor vehicle dealer license or used motor vehicle dealer license. The motor vehicle dealer license fee is one hundred dollars per year and for which the department shall issue one dealer plate. The applicant for an initial new or used motor vehicle dealer license shall submit a nonrefundable fee of one hundred dollars for the initial inspection with the application. The applicant shall provide the business’s federal employer identification number or, in the case of an application from an individual, social security number. The department may assess a person violating this section a one hundred dollar fee for a first violation, a two hundred dollar fee for a second violation within two years of the first violation, or a fee of at least five hundred dollars but not more than two thousand dollars for a third or subsequent violation within five years of the first violation. Any person not licensed as a dealer under this section who has been previously found to be in violation of this section, and assessed the fees specified, is guilty of a class B misdemeanor if a third or subsequent violation occurs.

Source:

S.L. 2001, ch. 337, § 2; 2005, ch. 338, § 4; 2007, ch. 341, § 3.

39-22-15. Established place of business — Penalty.

  1. A dealer license may not be issued until the applicant furnishes proof satisfactory to the director that the applicant has, does, and will continue to maintain in North Dakota an established place of business adjacent to the primary motor vehicle display lot maintained by the dealer. An established place of business means a permanent enclosed building of at least two hundred fifty square feet [23.22 square meters] either owned, rented, or leased at which a permanent business of bartering, trading, and selling of motor vehicles will be conducted and does not mean a residence, tents, temporary stands, or other temporary quarters. The established place of business and primary motor vehicle display lot must cover at least two thousand five hundred square feet [232.26 square meters] and be located on property zoned or otherwise approved for this purpose by the appropriate zoning authority. The established place of business must be adequately heated and lighted so as to be comfortable for customers and employees and be equipped with standard office equipment necessary for the conduct of the business. All records related to the business, including titles or other documents showing ownership of the vehicles, must be kept and maintained at the established place of business, or if multiple dealer licenses are held by a person, records may be kept and maintained at one established place of business for that person.
  2. An established place of business must have a telephone publicly listed in the name of the dealership, be open to the public during normal business hours, and have a sign identifying the business to the public as a motor vehicle dealership. The sign must be at least thirty-two square feet [2.97 square meters] in size, contain the name of the dealership in letters at least ten inches [25.4 centimeters] high, and be clearly visible from the street. A business sign approved by a motor vehicle manufacturer may be used in lieu of the sign requirements of this section.
  3. If the licensee desires to move from the established place of business occupied when the license was granted to a new location, the licensee shall first secure from the director permission to do so. The licensee must furnish proof satisfactory to the director that the premises to which the licensee proposes to move conform with the requirements of this section.
  4. The department may assess a person violating this section a one hundred dollar fee for a first violation or a two hundred dollar fee for a second violation within two years of the first violation. The department may suspend the license of a motor vehicle dealer licensed under this chapter if a third or subsequent violation of this section occurs within five years of the first violation.

Source:

S.L. 2001, ch. 337, § 3; 2007, ch. 341, § 4; 2013, ch. 309, § 1.

39-22-16. Application for new motor vehicle dealer license — Franchise required — Selling vehicles without a franchise — Penalty.

  1. In an application for a new motor vehicle dealer license, the applicant shall furnish proof satisfactory to the director that the applicant has a bona fide contract or franchise in effect with a manufacturer or distributor of the new motor vehicle or motor vehicles in which the dealer proposes to deal. A new motor vehicle dealer license entitles the holder to deal in both used motor vehicles and in those new motor vehicles only for which the dealer has a bona fide contract or franchise in effect with a manufacturer or distributor. A used motor vehicle dealer license entitles the holder to deal in used motor vehicles only.
  2. New motor vehicle dealers who have been issued surrounding communities as a part of their dealer area of responsibility may be issued additional new motor vehicle dealer licenses if the manufacturer provides the department written approval of additional sites for display and sale of motor vehicles. Applicants for additional new car dealer licenses must meet all of the requirements of this chapter.
  3. If a motor vehicle dealer purchases or holds for sale a new motor vehicle for which the dealer does not have a bona fide contract or franchise in effect with a manufacturer or distributor, the new motor vehicle becomes, at the time of purchase or possession, subject to the registration provisions of chapter 39-04, the title registration provisions of chapter 39-05, and the motor vehicle excise tax provisions of chapter 57-40.3.
  4. The department may assess a person violating this section a two hundred fifty dollar fee for a first violation or a five hundred dollar fee for a second violation within two years of the first violation. The department may suspend the license of a motor vehicle dealer licensed under this chapter if a third or subsequent violation of this section occurs within five years of the first violation.

Source:

S.L. 2001, ch. 337, § 4; 2007, ch. 341, § 5.

39-22-17. Additional dealer plates — In-transit plates — Demonstration plates — Fees — Use of dealer plates — Penalty.

  1. Additional dealer number plates must be issued to the dealer upon payment of a fee of twenty dollars each. A dealer number plate may be used on any vehicle owned by the dealership and used in the direct functions of demonstrating, buying, or selling vehicles. Dealer plates may not be used on a service vehicle or a vehicle used in other functions of the business, sold units in the possession of the purchaser, by family members not residing at the dealer’s residence, or by a person not directly involved in the operation of the dealership.
  2. A dealer plate displayed on a vehicle must be visibly displayed on the rear of the vehicle.
  3. The department may assess a person violating this section a one hundred dollar fee for a first violation, a two hundred dollar fee for a second violation within two years of the first violation, or a fee of at least five hundred dollars but not more than two thousand dollars for a third or subsequent violation within five years of the first violation.

Source:

S.L. 2001, ch. 337, § 5; 2007, ch. 341, § 5; 2007, ch. 342, § 1.

39-22-18. Renewal of dealer license — Fees — Minimum sales requirement — Penalty.

A dealer license issued under this chapter expires on December thirty-first of each year. A licensed dealer may apply for renewal of the dealer’s license on forms prescribed by the department and payment of the dealer license and dealer plate fees required by this chapter. The department may not renew the dealer license of any applicant who has made less than eight retail motor vehicle sales during the previous year. The department may adopt administrative rules to limit the number of dealer plates available to an applicant based on the applicant’s motor vehicle sales history. Any dealer who fails to submit a renewal application before the expiration of the dealer’s current license, in addition to all other fees due, shall pay a one hundred dollar fee at the time the dealer’s license is renewed. For purposes of this section, “retail motor vehicle sales” means the sale of a motor vehicle that requires titling and registration in order to operate on the roads.

Source:

S.L. 2001, ch. 337, § 6; 2005, ch. 338, § 5; 2019, ch. 333, § 1, effective August 1, 2019.

39-22-19. Garage liability insurance requirement.

Before the issuance of a motor vehicle dealer license, the applicant must provide proof to the department of a continuous policy of liability insurance for the business operation of the applicant which includes general, business automobile, and sales, repair, or service operations liability as is appropriate to the business operation. The insurance company that issued the policy must notify the department of any cancellation, suspension, or revocation of the coverage. Any motor vehicle dealer who fails to maintain the insurance coverage required by this section shall return the dealer license and dealer number plates to the department on or before the effective date of the cancellation, suspension, or revocation. Failure to return the dealer license or dealer number plates results in automatic revocation by operation of law. The department may order the superintendent to take possession of any dealer license or dealer number plates not returned to the department as required in this section. The department shall reinstate the dealer license and dealer number plates only when proof of insurance coverage is received.

Source:

S.L. 2001, ch. 337, § 7; 2011, ch. 291, § 1.

39-22-20. Display and sale of vehicles by out-of-state dealers — Offsite display and sale by instate dealers — Penalty.

  1. An out-of-state motor vehicle dealer who possesses a current motor vehicle dealer license from the dealer’s home jurisdiction may participate in bona fide North Dakota automobile shows and sales promotions after obtaining a permit from the department. The permit must be issued upon the payment of a fee of one hundred dollars and is valid for a period of time, not to exceed seven days, to be determined by the department.
  2. A motor vehicle dealer licensed under this chapter may participate in bona fide automobile shows and sales promotions in this state after obtaining a permit from the department. The permit must be issued upon the payment of a fee of twenty-five dollars and is valid for a period of time, not to exceed seven days, to be determined by the department.
  3. The department shall deny an application for a permit if it determines the applicant does not intend to participate in a bona fide show or promotion.
  4. The department may assess a person violating this section a one hundred dollar fee for a first violation, a two hundred dollar fee for a second violation within two years of the first violation, or a fee of at least five hundred dollars but not more than two thousand dollars for a third or subsequent violation within five years of the first violation.

Source:

S.L. 2001, ch. 337, § 8; 2007, ch. 341, § 7.

39-22-21. Consignment vehicles — Penalty.

  1. A motor vehicle dealer may sell a motor vehicle consigned to the dealer by a motor vehicle owner, except when the owner is a licensed motor vehicle dealer, under the terms of a consignment contract between the owner and the dealer. However, a motor vehicle dealer may sell a collector motor vehicle consigned to the dealer by an owner that is a licensed motor vehicle dealer. The consignment contract form must specify the terms of the agreement between the owner and the dealer, specify the location of the motor vehicle certificate of title, and must be approved by the department.
  2. The department may assess a person violating this section a one hundred dollar fee for a first violation, a two hundred dollar fee for a second violation within two years of the first violation, or a fee of at least five hundred dollars but not more than two thousand dollars for a third or subsequent violation within five years of the first violation.

Source:

S.L. 2001, ch. 337, § 9; 2003, ch. 335, § 2; 2007, ch. 341, § 8.

39-22-22. Operators of motor vehicle display lots — Permit required — Fee — Records required — Penalty.

  1. A person not licensed as a motor vehicle dealer may operate display lots on which the owner of a vehicle may display the vehicle for sale. The display lot must be located on property zoned or otherwise approved for this purpose by the appropriate zoning authority. The display lot operator must obtain an annual permit from the department to operate the lot. The annual fee for the permit is fifty dollars.
  2. The display lot operator must provide the department with proof of a liability insurance policy with a minimum coverage of three hundred thousand dollars. The display lot must have a prominent sign identifying the business and the telephone number of the business owner. The sign must be at least thirty-two square feet [2.97 square meters] in size, contain the name of the display lot operator in letters at least ten inches [25.4 centimeters] high, and be clearly visible from the street.
  3. The display lot operator, before providing space to a vehicle owner, must verify that the person renting the space is the owner of the displayed vehicle and keep records for at least one year after the rental of a space verifying compliance with this requirement. A licensed motor vehicle dealer may not operate a display lot on property that is part of the licensed dealership. The department may inspect the records of the display lot operator related to any complaint made against the operator.
  4. The department may assess a person violating this section a one hundred dollar fee for a first violation, a two hundred dollar fee for a second violation within two years of the first violation, or a fee of at least five hundred dollars but not more than two thousand dollars for a third or subsequent violation within five years of the first violation.

Source:

S.L. 2001, ch. 337, § 10; 2007, ch. 341, § 9.

39-22-23. Auto auction operators — License required — Records required — Penalty.

  1. A person may not operate a wholesale or retail auto auction business without being licensed as a motor vehicle dealer. An auto auction operator must keep records related to the seller and purchaser of all vehicles sold through the operator’s business for at least two years and make those records available to the director or an authorized representative of the director upon reasonable request.
  2. The department may assess a person violating this section a one hundred dollar fee for a first violation and a two hundred dollar fee for a second violation within two years of the first violation. The department may suspend the license of a motor vehicle dealer licensed under this chapter if a third or subsequent violation of this section occurs within five years of the first violation.

Source:

S.L. 2001, ch. 337, § 11; 2007, ch. 341, § 10.

39-22-24. Factory store prohibited — Penalty.

A manufacturer, importer, or distributor of new motor vehicles, or a subsidiary thereof, may not own, operate, or control a motor vehicle dealership in this state. This section does not apply if:

  1. The ownership and operation is for a temporary period not to exceed one year during the transition from one owner or operator to another;
  2. The dealership is being sold under a bona fide contract or purchase option to the operator of the dealership, or a contract exists under which the operator of the dealership can expect to acquire full ownership of or a controlling interest in the dealership, and after the transfer of ownership is completed the dealership will not be owned, operated, or controlled by the manufacturer, importer, or distributor, or a subsidiary thereof; or
  3. The department determines there is no prospective independent dealer available to own or operate the dealership in a manner consistent with the public interest and meeting the requirements of this chapter.

Any person violating this section is guilty of a class A misdemeanor.

Source:

S.L. 2001, ch. 337, § 12.

39-22-25. Direct manufacturer sales prohibited — Penalty.

A manufacturer or franchiser may not offer to sell directly or sell indirectly, any new motor vehicle to a consumer in this state, except through a new motor vehicle dealer holding a franchise for the line make covering the new motor vehicle. This section does not apply to manufacturer or franchiser sales of new motor vehicles to the federal government, charitable organizations, or employees of the manufacturer or franchiser. Any person violating this section is guilty of a class A misdemeanor.

Source:

S.L. 2001, ch. 337, § 13.

39-22-26. Brokering of motor vehicles prohibited — Penalty.

A person may not act as, offer to act as, or hold out to be a motor vehicle broker. As used in this section, a broker is a person who, for a fee, commission, or other valuable consideration, arranges or offers to arrange a transaction involving the sale or exchange of a motor vehicle, and who is not:

  1. A dealer or a bona fide agent or employee of a dealer;
  2. A representative or a bona fide agent or employee of a manufacturer;
  3. The bona fide owner of the motor vehicle involved in the transaction; or
  4. A bona fide auctioneer conducting an auction involving motor vehicles not owned by the auctioneer.

Any person violating this section is guilty of a class A misdemeanor.

Source:

S.L. 2001, ch. 337, § 14.

39-22-27. Collector motor vehicle auctions.

  1. A person may engage in the business of conducting a collector motor vehicle auction without obtaining a motor vehicle dealer’s license as otherwise required by this chapter if:
    1. Each motor vehicle sold or offered for sale at the auction is a collector, antique, or special interest vehicle;
    2. The sale is open to the public;
    3. The person conducts no more than two collector motor vehicle auctions per year;
    4. The site of the auction is located on property zoned or otherwise approved for this purpose by the appropriate zoning authority; and
    5. The auction lasts no more than two days.
  2. Collector motor vehicle auctions that comply with this section may be conducted any day of the week and sections 39-22-07.1 and 39-22-20 do not apply to motor vehicle dealers who participate in collector motor vehicle auctions.
  3. A collector motor vehicle is a vehicle that is at least twenty-five years old; an antique motor vehicle is a vehicle that is at least forty years old; and a special interest vehicle is a vehicle that has an appreciating value because of rarity, originality, or limited production of an anniversary edition.

Source:

S.L. 2003, ch. 335, § 1.

CHAPTER 39-22.1 Trailer Dealer’s Licensing and Bonding

39-22.1-01. Trailer dealer’s license — Fees — Plates — Definition.

  1. A person may not engage in the business of buying, selling, or exchanging of trailers, or advertise or hold out to the public as being in the business of buying, selling, or exchanging of trailers without first being licensed.
  2. Application for dealer’s license and renewal license must be made to the director on forms as the director prescribes and furnishes, and the application must be accompanied by an annual fee of thirty dollars for which must be issued one dealer plate. The applicant for an initial trailer dealer license shall submit a nonrefundable fee of one hundred dollars for the initial inspection with the application. A dealer’s license expires on December thirty-first of each year, and application for renewal of a dealer’s license must be made on or before the expiration of the current dealer’s license. Any dealer who fails to submit a renewal application before the expiration of the dealer’s current license, in addition to all other fees due, shall pay a one hundred dollar fee at the time the dealer’s license is renewed.
  3. A trailer dealer’s license may be issued only to those who will maintain a primary established place of business and will abide by all the provisions of law pertaining to trailer dealers. In addition, the dealer shall maintain that person’s business records in one central location.
  4. Upon the payment of a fee of ten dollars for each additional plate, the director shall register and issue dealer’s license plates for use on any trailers owned by the licensed dealer, and the trailers bearing the dealer’s license plates may be lawfully operated upon the public highways of this state by the dealer during the year of the registration, in the direct functions of demonstrating, buying, selling, or transporting trailers. A dealer’s license plates expire on December thirty-first of each year.
  5. The term “trailer” as used in this chapter does not include those trailers exempt from registration in chapter 39-04.

Source:

S.L. 1977, ch. 370, § 1; 1983, ch. 449, § 1; 1987, ch. 480, § 2; 1993, ch. 54, § 106; 1997, ch. 343, § 2; 2011, ch. 291, § 2.

39-22.1-01.1. Primary established place of business — Penalty.

  1. If the licensee desires to move from the primary established place of business occupied when the license was granted to a new location, the licensee shall notify the director.
  2. A licensed dealer may establish secondary trailer display lots in the conduct of the dealer’s business. Secondary lots must be identified as a part of the licensed dealer’s operation.
  3. The department may assess a person violating this section a one hundred dollar fee for a first violation or a two hundred dollar fee for a second violation within two years of the first violation. The department may suspend the license of a trailer dealer licensed under this chapter if a third or subsequent violation of this section occurs within five years of the first violation.

Source:

S.L. 2011, ch. 291, § 3.

39-22.1-02. Bond required.

Before the issuance of or the renewal of a trailer dealer’s license, as provided by law, the applicant for the license shall furnish a continuous surety bond executed by the applicant as principal and executed by a surety company licensed and qualified to do business within the state of North Dakota, which must be in the amount of ten thousand dollars, and be conditioned upon the faithful compliance by the applicant as a dealer, if the license be issued to the applicant, that the dealer will comply with all the laws of this state pertaining to the business, and regulating or being applicable to the business of the dealer as a dealer in trailers, and indemnifying any person dealing or transacting business with the dealer in connection with any trailer from any loss or damage occasioned by the failure of the dealer to comply with the laws of this state, including the furnishing of a proper and valid certificate of title to the vendee of a trailer within fifteen days of the sale of the trailer, and that the bond shall be filed with the director before the issuance of the license. However, the aggregate liability of the surety to all persons for all losses or damages may not exceed the amount of the bond. Any third party sustaining injury within the terms of the bond may proceed against the principal and surety without making the state a party to any proceedings. Any applicant bonded under chapter 39-18 or 39-22 may not be required to furnish the surety bond provided for in this section if the bond issued under chapter 39-18 or 39-22 is written to include the requirements of this section. The bond may be canceled by the surety, as to future liability, by giving written notice by certified mail, addressed to the principal at the address stated in the bond, and to the department. Thirty days after the mailing of the notice, the bond is null and void as to any liability arising after that thirty days. The surety remains liable, subject to the terms, conditions, and provisions of the bond, until the effective date of the cancellation.

Source:

S.L. 1977, ch. 370, § 2; 1983, ch. 449, § 2; 2005, ch. 338, § 6; 2011, ch. 291, § 4.

39-22.1-02.1. Disposition of fees.

Fees from registration of dealers must be deposited with the state treasurer and credited to the highway tax distribution fund.

Source:

S.L. 1979, ch. 427, § 3; 2007, ch. 316, § 5.

39-22.1-03. Suspension, denial, revocation, or cancellation of dealer’s license — Penalty.

The director may deny an application for a dealer’s license or suspend, revoke, or cancel a dealer’s license after it has been granted for making any material misstatement by an applicant in the application for a license; willfully failing to comply with this chapter; willfully violating a law relating to the sale, distribution, or financing of trailers; ceasing to have a primary established place of business; or failing to comply with the reasonable rules and regulations of the director as established under chapter 28-32, but no order suspending or revoking a dealer’s license may be made without a hearing at which the licensee must be given an opportunity to be heard. Any dealer violating any provision of this chapter must be assessed a one hundred dollar fee by the department for a first violation and a two hundred dollar fee by the department for a second violation within two years of the first violation. The department shall suspend the license of a trailer dealer licensed under this chapter if a third or subsequent violation of the chapter occurs within five years of the first violation.

Source:

S.L. 1977, ch. 370, § 3; 1983, ch. 449, § 3; 2005, ch. 338, § 7; 2011, ch. 291, § 5.

39-22.1-04. Examination of books and records.

The director or any duly authorized representative may inspect the pertinent books, letters, records, and contracts of any licensed trailer dealer or any other person relating to any complaint made against the dealer or person and held to be in violation of this chapter. In addition, any duly authorized representative of the department may inspect the records of any licensed dealer to verify that fees collected for the department have been properly remitted.

Source:

S.L. 1977, ch. 370, § 4; 1989, ch. 476, § 2; 2011, ch. 291, § 6.

Cross-References.

Classification of offenses, penalties, see § 12.1-32-01.

39-22.1-05. Powers of the director.

In addition to other powers provided by law, the director may:

  1. Cancel, revoke, or suspend a dealer’s license as provided for in section 39-22.1-03.
  2. Adopt rules not inconsistent with this chapter governing the application for dealer’s licenses and the cancellation or suspension or revocation of dealer’s licenses.
  3. Employ and pay any person as the director determines necessary to inspect dealers in this state or investigate dealers for information for the director to procure evidence in connection with any prosecution or other action to suspend, revoke, or cancel a dealer’s license in relation to any matter in which the director has any duty to perform.

Source:

S.L. 2011, ch. 291, § 7.

39-22.1-06. Penalty.

Any person who violates this chapter is guilty of a class B misdemeanor.

Source:

S.L. 2011, ch. 291, § 8.

CHAPTER 39-22.2 Wholesale Motor Vehicle Dealers’ Licensing [Repealed]

[Repealed by S.L. 1983, ch. 450, § 1]

CHAPTER 39-22.3 Motor-Powered Recreational Vehicle Dealers

39-22.3-01. Motor-powered recreational vehicle dealer’s license — Fees — Additional number plates.

A person may not engage in the business of buying, selling, or exchanging of motor-powered recreational vehicles without possessing a current motor-powered recreational vehicle dealer’s license. A person may not advertise or hold out to the public as engaging in the buying, selling, or exchanging of motor-powered recreational vehicles for resale without possession of a current motor-powered recreational vehicle dealer’s license. The motor-powered recreational vehicle dealer’s license fee is twenty-five dollars per year and with which must be issued one dealer’s plate. Additional dealer’s plates are ten dollars each. A dealer plate may be displayed on any motor-powered recreational vehicle owned by the dealer.

Source:

S.L. 1983, ch. 451, § 1; 1987, ch. 480, § 3; 1993, ch. 54, § 106; 2007, ch. 343, § 3.

39-22.3-02. Application required.

A license may not be granted unless a completed application has been made in the form prescribed by the director.

Source:

S.L. 1983, ch. 451, § 1; 2007, ch. 343, § 4.

39-22.3-03. Issuance of license — Conditions — Penalty.

A license may not be issued until the applicant furnishes proof satisfactory to the director that the applicant has and will continue to maintain an established place of business. An established central place of business means a permanent enclosed building or structure either owned or leased with a stated periodic rental, at which a permanent business of bartering, trading, and selling of motor-powered recreational vehicles, the repair, maintenance, and servicing of motor-powered recreational vehicles and the storage of parts and accessories of motor-powered recreational vehicles will be carried out in good faith and not for the purpose of evading this section, and where the business books, records, and files must be maintained, and does not mean a residence, tents, temporary stands, or other temporary quarters, nor permanent quarters occupied pursuant to any temporary arrangement. The central place of business may consist of several buildings or structures, but a building or structure may not be located beyond one thousand feet [304.8 meters] from any other buildings or structures of the central place of business. The central place of business must be located within this state. The licensee must be permitted to use unimproved lots and premises for sales, storage, or display of motor-powered recreational vehicles. A nonrefundable fee of fifty dollars will be charged for each inspection and must accompany each initial application for a motor-powered recreational vehicle dealer’s license. Any dealer violating this chapter must be assessed a one hundred dollar fee by the department for a first violation and a two hundred dollar fee by the department for a second violation within two years of the first violation. The department shall suspend the license of a motor-powered recreational vehicle dealer licensed under this chapter if a third or subsequent violation of this chapter occurs within five years of the first violation.

Source:

S.L. 1983, ch. 451, § 1; 2005, ch. 338, § 8; 2007, ch. 343, § 5.

39-22.3-04. Grounds for denial, suspension, cancellation, or revocation of dealer’s license.

The director may deny an application for a dealer’s license or suspend, revoke, or cancel the license after it has been granted for the following reasons:

  1. For any material misstatement by an applicant in the application for the license.
  2. For any willful failure to comply with this chapter or with any rule adopted by the director.
  3. For knowingly permitting any salesperson to sell or exchange, or offer or attempt to sell or exchange, any motor-powered recreational vehicle except for the licensed motor-powered recreational vehicle dealer by whom the salesperson is employed, or to offer, transfer, or assign any sale or exchange that they may have negotiated to any other dealer.
  4. For having violated any law relating to the sale, distribution, or financing of motor-powered recreational vehicles.
  5. For having ceased to have an established place of business.
  6. For failure to collect and timely transmit the snowmobile safety and off-highway safety fees.

Source:

S.L. 1983, ch. 451, § 1; 1985, ch. 415, § 3; 2007, ch. 343, § 6; 2009, ch. 342, § 1; 2011, ch. 267, § 6.

39-22.3-05. Bond required.

The license applicant shall furnish a continuous surety bond executed by a surety company, licensed and qualified to do business within this state and the bond must run to the state of North Dakota in the amount of ten thousand dollars and be conditioned upon the faithful compliance by the applicant with all the statutes of this state, regulating or being applicable to a dealer in motor-powered recreational vehicles, and indemnifying any person having a motor-powered recreational vehicle transaction with the dealer from any loss of damage occasioned by the failure of the dealer to comply with any statutory requirement of the transaction. The bond must be filed with the director before the issuance of a license. The aggregate liability of the surety of all persons may not exceed the amount of the bond. Any third party sustaining injury within the terms of the bond may proceed against the principal and surety without making the state a party of any proceedings. The bond may be canceled by the surety, as to future liability, by giving written notice by certified mail, addressed to the principal at the address stated in the bond, and to the department. Thirty days after the mailing of the notice, the bond is null and void as to any subsequent liability. The surety remains liable, subject to the terms, conditions, and provisions of the bond, until the effective date of the cancellation.

Source:

S.L. 1983, ch. 451, § 1; 2005, ch. 338, § 9; 2007, ch. 343, § 7.

39-22.3-06. Disposition of fees.

Fees from registration of dealers must be deposited with the state treasurer and credited to the dealer enforcement fund to be used exclusively for enforcement of this chapter.

Source:

S.L. 1983, ch. 451, § 1; 2007, ch. 343, § 8.

39-22.3-07. Dealer permitting license to be used by another dealer — License revoked — Penalty.

A dealer who permits any other dealer to use that first dealer’s license, or permits the use of the license for the benefit of any other dealer, is guilty of an infraction. The director shall revoke the license of any dealer who violates this section.

Source:

S.L. 1983, ch. 451, § 1; 1985, ch. 82, § 102; 2007, ch. 343, § 9.

39-22.3-08. Dealers to furnish information to director.

All dealers engaged in the sale of motor-powered recreational vehicles in this state shall furnish the director with information as to models, specifications, selling prices, and other data requested by the director as may be necessary in carrying out this chapter.

Source:

S.L. 1983, ch. 451, § 1; 2007, ch. 343, § 10.

39-22.3-09. Powers of the director.

In addition to other powers provided by law, the director in conformity with this chapter:

  1. May cancel, revoke, or suspend a dealer’s license as provided for in this chapter;
  2. May prescribe rules not inconsistent with this chapter governing the application for dealer’s licenses and the cancellation or suspension or revocation of a dealer’s license; and
  3. May employ and pay persons necessary to inspect dealers in this state, investigate dealers for the information of the director, and procure evidence in connection with any prosecution or other action to suspend, revoke, or cancel a dealer’s license in relation to any matter in which the director has any duty to perform.

Source:

S.L. 1983, ch. 451, § 1; 2007, ch. 343, § 11.

39-22.3-10. Examination of books and records.

The director or the director’s duly authorized representative may inspect the books, letters, records, and contracts of any licensed motor-powered recreational vehicle dealer relating to any specific complaint made against the dealer and held to be in violation of any provision of this title.

Source:

S.L. 1983, ch. 451, § 1; 2007, ch. 343, § 12.

39-22.3-11. Officers to administer the provisions of chapter.

The director and the director’s appointees are responsible for the administration of the provisions of this chapter.

Source:

S.L. 1983, ch. 451, § 1.

39-22.3-12. Penalty for violation of provisions of chapter.

Any person violating any of the provisions of this chapter for which another penalty is not specifically provided is guilty of a class B misdemeanor.

Source:

S.L. 1983, ch. 451, § 1.

CHAPTER 39-23 Vehicle Equipment Safety Compact [Repealed]

[Repealed by S.L. 1983, ch. 452, § 1]

CHAPTER 39-24 Regulation and Registration of Snowmobiles

39-24-01. Definitions.

For the purposes of this chapter:

  1. “Collector snowmobile” means a snowmobile that is twenty-five years old or older, was originally produced as a separate identifiable make by a manufacturer, and is owned and operated solely as a collector’s item.
  2. “Dealer” means a person engaged in the business of buying, selling, or exchanging snowmobiles, who advertises or holds out to the public as being engaged in the buying, selling, or exchanging of snowmobiles, or who engages in the buying of snowmobiles for resale.
  3. “Operate” means to ride in or on and control the operation of a snowmobile.
  4. “Operator” means every person who operates or is in actual physical control of a snowmobile.
  5. “Owner” means a person, other than a lienholder, having the property in or title to a snowmobile and who is entitled to the use or possession of that snowmobile.
  6. “Register” means the act of assigning a registration number to a snowmobile.
  7. “Roadway” means that portion of a highway improved, designed, or ordinarily used for vehicular travel.
  8. “Snowmobile” means a self-propelled vehicle intended for off-road travel primarily on snow, having a curb weight of not more than one thousand two hundred pounds [544.31 kilograms], driven by track or tracks in contact with the snow, steered by a ski or skis in contact with the snow, and which is not wider than forty-eight inches [121.92 centimeters].

Source:

S.L. 1969, ch. 362, § 1; 1985, ch. 448, § 1; 1989, ch. 72, § 15; 1993, ch. 54, § 106; 2005, ch. 341, § 2; 2013, ch. 310, § 1; 2021, ch. 299, § 1, effective August 1, 2021.

Cross-References.

Recreation vehicle franchises, see ch. 51-20.

Notes to Decisions

Purpose of Act.

One of the principal reasons for enactment of this chapter was to ensure that sufficient funds were collected from snowmobile registrants for payment into Unsatisfied Judgment Fund. Hughes v. State Farm Mut. Auto. Ins. Co., 236 N.W.2d 870, 1975 N.D. LEXIS 143 (N.D. 1975).

Snowmobile a Motor Vehicle.

A snowmobile is a motor vehicle under title 39. Hughes v. State Farm Mut. Auto. Ins. Co., 236 N.W.2d 870, 1975 N.D. LEXIS 143 (N.D. 1975).

Collateral References.

Criminal liability based on violation of statute or ordinance specifically regulating snowmobile operation, 45 A.L.R.3d 1438.

Liability for injury incurred in operation of power golf cart, 66 A.L.R.4th 622.

39-24-02. Snowmobile registration — Title certificate — General requirements.

Except as hereinafter provided, no person may operate any snowmobile unless the snowmobile has been registered in accordance with the provisions of this chapter.

Any snowmobile purchased after July 1, 1973, must be titled under the provisions of chapter 39-05 in order to be operated under the provisions of this section. Any snowmobile purchased prior to July 1, 1973, may be titled under the provisions of chapter 39-05.

Source:

S.L. 1969, ch. 362, § 2; 1973, ch. 318, § 1; 1979, ch. 435, § 1.

39-24-03. Registration — Application — Issuance — Fees — Renewal.

  1. Application for registration must be made to the department in a form as the department shall prescribe and furnish and must state the name and address of every owner of the snowmobile and be signed by at least one owner. A copy of the application must be carried on the person when operating and shall serve as evidence of registration for a period of not more than thirty days from the date of application.
  2. Upon receipt of the application and the appropriate fee, the department shall register a snowmobile and assign a registration number and a certificate of registration. The registration number must be at least one and one-half inches [3.81 centimeters] in height and of a reflectorized material and must be securely affixed on each side of the snowmobile in a position as to provide clear legibility for identification. The certificate of registration must include information regarding the make, year, serial number, and name and address of the owner. The fee for registration of each snowmobile must be five dollars for any portion of the registration period and the registration period is for two years beginning October first of each odd-numbered year. The fee for a duplicate or replacement registration number or registration card which is lost, mutilated, or becomes illegible may not exceed five dollars. For each snowmobile registered under the provisions of this chapter, there must be assessed a snowmobile trail tax in the amount of forty-five dollars.
  3. Every owner of a snowmobile shall renew the registration in a manner as the department shall prescribe, upon payment of the same registration fees provided in this section.
  4. Upon application for registration as prescribed in this section, any snowmobile dealer as defined in section 39-24-01 must be issued registration numbers distinctively marked as dealer’s registration numbers upon payment of the appropriate fee as prescribed in this section. The dealer’s registration numbers must be used only on snowmobiles owned by the dealership.

Source:

S.L. 1969, ch. 362, § 3; 1971, ch. 385, § 1; 1977, ch. 371, § 1; 1977, ch. 372, § 1; 1979, ch. 436, § 1; 1979, ch. 437, § 1; 1981, ch. 402, § 1; 1987, ch. 485, § 1; 1989, ch. 484, § 1; 1989, ch. 485, § 1; 1991, ch. 434, § 1; 2003, ch. 336, § 1; 2005, ch. 342, § 1; 2015, ch. 273, § 1, effective July 1, 2015.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 273, S.L. 2015 became effective July 1, 2015.

39-24-03.1. Snowmobile safety fees.

Upon the sale of a new or used snowmobile and in addition to other fees and taxes imposed under section 39-24-03, a dealer shall collect a five dollar safety fee from the buyer. Within fifteen days after the end of each calendar quarter, the dealer shall file a report with the parks and recreation department which discloses the number of snowmobiles sold during that calendar quarter and includes fees collected from the buyer. Fees imposed under this section must be deposited in the state snowmobile fund established under section 39-24-05. The parks and recreation department may use these funds solely for snowmobile safety education and promotion. The parks and recreation department shall report to the director within thirty days of the end of each calendar quarter the motor-powered recreational vehicle dealers that submitted a safety fee report and the number of vehicles sold, and shall identify every dealer not collecting or transmitting snowmobile safety fees.

Source:

S.L. 2009, ch. 342, § 2.

39-24-04. Exemption from registration — Exemption from fees.

  1. A registration number must be issued without the payment of a fee for snowmobiles owned by the state of North Dakota or any of its political subdivisions upon application for the registration.
  2. No registration or fees may be required of:
    1. Snowmobiles owned and used by the United States or another state or its political subdivisions.
    2. Snowmobiles registered in a country other than the United States and temporarily used within this state.
    3. Snowmobiles validly licensed in another state and which have not been within this state for more than thirty consecutive days.
    4. Snowmobiles operated upon lands owned or leased by the snowmobile owner.
    5. Snowmobiles incapable of speeds in excess of ten miles per hour and with an engine displacement of less than one hundred cubic centimeters.
    6. Collector snowmobiles. The director may issue a special permit to a person to operate in a parade; organized group outings, including races, rallies, or other promotional events; and for up to ten days each year for personal transportation. The director may impose a reasonable restriction of a permittee and may revoke, amend, suspend, or modify a permit for cause.
  3. If a snowmobile is exempt from registration under subdivision b or c of subsection 2, the owner is required to purchase an out-of-state public trails and lands access permit received upon payment of a twenty-five dollar per year fee. The permit must be in the operator’s possession when that individual is operating the snowmobile within the state. Dealers or other agents authorized by the director of the parks and recreation department who sell out-of-state public trails and lands access permits may retain one dollar of the twenty-five dollar per year fee and the remainder of the fees collected under this subsection must be deposited in the state snowmobile fund.

Source:

S.L. 1969, ch. 362, § 4; 1979, ch. 435, § 2; 1987, ch. 485, § 2; 2003, ch. 337, § 1; 2005, ch. 341, § 3; 2007, ch. 344, § 1; 2015, ch. 273, § 2, effective July 1, 2015.

Effective Date.

The 2015 amendment of this section by section 2 of chapter 273, S.L. 2015 became effective July 1, 2015.

39-24-05. Disposition of registration fees and trail tax — Transfer from highway tax distribution fund.

Fees from registration of snowmobiles must be deposited with the state treasurer and credited to the highway tax distribution fund. The snowmobile trail tax must be deposited in a state snowmobile fund in the state treasury. Additionally, an amount equal to the tax collected on forty gallons [151.42 liters] of motor vehicle fuel multiplied by the number of collector snowmobiles and snowmobiles registered under this chapter must be transferred annually from the highway tax distribution fund, before allocation of the fund under section 54-27-19, and credited to the state snowmobile fund. The parks and recreation department may, upon appropriation by the legislative assembly, expend from such fund moneys it deems necessary for purposes of administering snowmobile safety programs and establishing and maintaining snowmobile facilities and programs.

Source:

S.L. 1969, ch. 362, § 5; 1977, ch. 372, § 2; 1979, ch. 438, § 1; 1989, ch. 486, § 1; 1991, ch. 640, § 8; 1993, ch. 80, § 8; 1993, ch. 397, § 1; 2005, ch. 341, § 4; 2007, ch. 316, § 6; 2015, ch. 273, § 3, effective July 1, 2015.

Effective Date.

The 2015 amendment of this section by section 3 of chapter 273, S.L. 2015 became effective July 1, 2015.

39-24-06. Transfer or termination of snowmobile ownership or change of address of owner.

Within fifteen days after the transfer of ownership, or any part thereof, other than a security interest, or the destruction or abandonment of any snowmobile, or a change of address of the owner as listed with the application for registration, written notice thereof must be given by the owner to the director in such form as must be prescribed by the director.

Source:

S.L. 1969, ch. 362, § 6.

39-24-07. Licensing by political subdivisions.

No political subdivision of this state may require licensing or registration of snowmobiles subject to the provisions of this chapter.

Source:

S.L. 1969, ch. 362, § 7.

39-24-08. Rules and regulations.

Pursuant to this code and this chapter, rules for the regulation and use of snowmobiles must be adopted as follows:

  1. The director shall adopt rules for the registration of snowmobiles and display of registration numbers.
  2. The director has the authority in the interest of public health, welfare, and safety to regulate, restrict, or prohibit, by rule, the operation of snowmobiles on those highways under the director’s jurisdiction. The director’s authority to prohibit the use of snowmobiles is limited to the roadways, shoulders, inslopes, and medians within the right of way, except where such action is necessary to avoid an obstacle. Notwithstanding the racing prohibitions in section 39-08-03.1, the director may, on a case-by-case basis, permit organized and bona fide snowmobile races on the ditch bottoms, backslopes, and the top of the backslopes of the highway rights of way under the director’s jurisdiction. The planning, organization, route selection, and safety precautions of any such race are the sole responsibility of the permittee. It is expressly provided that the director, and the department and the employees thereof, shall incur no liability whatsoever for permitting such races.
  3. The director of the parks and recreation department shall adopt rules for regulating use of snowmobiles in state parks and other state-owned land under the supervision of the director of the parks and recreation department.
  4. The governing bodies of political subdivisions shall promulgate rules and regulations for regulating use of snowmobiles in recreation and other appropriate areas under their jurisdiction. The governing bodies of cities may, by ordinance, regulate, restrict, and prohibit the use of snowmobiles when operated within the exclusive jurisdiction of cities.

Source:

S.L. 1969, ch. 362, § 8; 1971, ch. 385, § 2; 1977, ch. 373, § 1; 1981, ch. 392, § 5; 1991, ch. 640, § 9; 1993, ch. 80, § 9.

39-24-09. Rules for operation of snowmobiles.

  1. No person may operate a snowmobile upon the roadway, shoulder, or inside bank or slope of any road, street, or highway in this state except as provided pursuant to this chapter. No snowmobile may be operated at any time within the right of way of any interstate highway within this state except as provided in this section.
  2. A snowmobile may make a direct crossing of a noninterstate street or highway provided:
    1. The crossing is made at an angle of approximately ninety degrees to the direction of the highway and at a place where no obstruction prevents a quick and safe crossing;
    2. The snowmobile is brought to a complete stop before crossing the shoulder or main traveled way of the highway;
    3. The driver yields the right of way to all oncoming traffic which constitutes an immediate hazard; and
    4. In crossing a divided highway, the crossing is made only at an intersection of such highway with another public street or highway.
  3. No snowmobile may be operated unless it is equipped with at least one headlamp, one taillamp, and brakes, all in working order, which conform to standards prescribed by rule of the director pursuant to the authority vested in the director by this code and this chapter.
  4. The emergency conditions under which a snowmobile may be operated other than as provided by this chapter must be such as to render the use of an automobile impractical under such conditions at such period of time and location.
  5. It is unlawful for any person to drive or operate any snowmobile in the following ways which are declared to be unsafe and a public nuisance:
    1. At a rate of speed greater than reasonable or proper under all the surrounding circumstances.
    2. In a careless, reckless, or negligent manner so as to endanger the person or property of another or to cause injury or damage to such person or property.
    3. While under the influence of intoxicating liquor or a drug as defined in section 39-24.1-01, or a combination thereof.
    4. Without a lighted headlamp and taillamp when required for safety.
    5. In any tree nursery or planting in a manner which damages or destroys growing stock.
    6. Without a manufacturer-installed or equivalent muffler in good working order and connected to the snowmobile exhaust system.
    7. Upon any private land where the private land is posted by the owner or tenant prohibiting trespassing. The name of the person posting the land must appear on each sign in legible characters. The posted signs must be readable from the outside of the land and must be placed conspicuously at a distance of not more than eight hundred eighty yards [804.68 meters] apart, provided further that as to land entirely enclosed by a fence or other enclosure, posting of signs at or on all gates through the fence or enclosure constitutes a posting of all the enclosed lands.
  6. It is unlawful for any person to operate a snowmobile pursuant to chapter 39-24 without having in possession a valid driver’s license, except as provided by section 39-24-09.1.
  7. If a snowmobile is operated within the right of way of any road, street, or highway of this state under this chapter, during times or conditions that warrant the use of lights, the snowmobile operator shall travel in the same direction as the direction of motor vehicles traveling on the side of the roadway immediately adjacent to the side of the right of way traveled by the snowmobile. An operator of a snowmobile traveling on a snowmobile trail maintained by the parks and recreation department which is within the right of way of any road, street, or highway of this state is exempted from this rule. The operator shall wait for all traffic to clear the roadway before crossing bridges and other similar structures.
  8. It is unlawful for any person to operate a snowmobile within a highway right of way as defined in subsection 38 of section 24-01-01.1 between April first and November first of any year.
  9. No snowmobile may be operated at any time within the right of way of any highway within this state while towing a sled, skid, or other vehicle, unless the sled, skid, or other vehicle is connected to the snowmobile by a hinged swivel and secure hitch.
  10. No person under the age of eighteen years may operate, ride, or otherwise be propelled on a snowmobile unless the person wears a safety helmet meeting United States department of transportation standards.
  11. A person may not operate a snowmobile, and an owner of a snowmobile may not knowingly permit the snowmobile to be operated, upon any property maintained, leased, or owned by the state parks and recreation department to which the public has a right of access for snowmobile or other vehicular use, without a policy of liability insurance which insures the person named, and any person using the snowmobile with the express or implied permission of the person named, against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of the snowmobile within this state, subject to the following limits, exclusive of interest and costs, with respect to each snowmobile: twenty-five thousand dollars because of bodily injury to or death of one person in any one accident and, subject to the limit for one person, fifty thousand dollars because of bodily injury to or death of two or more persons in any one accident, and twenty-five thousand dollars because of injury to or destruction of property of others in any one accident. Upon request of a law enforcement officer, a person operating a snowmobile shall provide proof of liability insurance to that officer within twenty days.
  12. A snowmobile may not be operated within the right of way of any interstate highway within this state except:
    1. For emergency purposes; or
    2. Across an interstate highway on an overpass or underpass, except where otherwise prohibited by law or by signing, provided the snowmobile crosses on the extreme right side of the overpass or underpass.

Source:

S.L. 1969, ch. 362, § 9; 1971, ch. 385, § 3; 1975, ch. 106, § 448; 1977, ch. 374, § 1; 1979, ch. 439, § 2; 1985, ch. 448, § 2; 1987, ch. 485, § 3; 1997, ch. 325, § 2; 1997, ch. 347, § 2; 1999, ch. 359, § 1; 2003, ch. 338, § 1; 2005, ch. 342, § 2; 2009, ch. 343, § 1.

Note.

This section is set out above to reflect a correction from the state since the 2019 cumulative supplement. In subsection 2, “non-interstate” was changed to “noninterstate”.

Notes to Decisions

Jury Instructions.

In an action for damages for injuries sustained in a snowmobile accident, the trial court properly refused to instruct the jury regarding the operation of snowmobiles in the state; this section, which requires a snowmobile operator to bring the snowmobile to a complete stop before crossing a road or highway, did not apply because when defendant was crossing an intersection in his snowmobile, he was using the street for its intended purpose of transportation, rather than encountering it as an obstacle to be overcome. Boser v. Hanson, 2003 ND 95, 663 N.W.2d 182, 2003 N.D. LEXIS 117 (N.D. 2003).

Collateral References.

Snowmobile operation as DWI or DUI, 56 A.L.R.4th 1092.

39-24-09.1. Operation by individuals — Minimum age.

  1. An individual under the age of ten may not operate a snowmobile unless the individual operates the snowmobile on private land. An individual ten or eleven years of age may not operate a snowmobile unless the individual operates the snowmobile on private land or the individual is in the presence of a parent or guardian pursuant to chapter 30.1-27, has completed a snowmobile safety training course as prescribed by the director of the parks and recreation department pursuant to chapter 28-32, and has received the appropriate snowmobile safety certificate issued by the director of the parks and recreation department.
  2. An individual twelve years of age and over may not operate a snowmobile unless the individual is in possession of a valid driver’s license, operates the snowmobile on private land, or unless the individual has completed a snowmobile safety training course as prescribed by the director of the parks and recreation department pursuant to chapter 28-32 and has received the appropriate snowmobile safety certificate issued by the director of the parks and recreation department.
  3. The failure of an operator to exhibit a snowmobile safety certificate upon demand to any official authorized to enforce this chapter is presumptive evidence that the individual is not the holder of the certificate.
  4. Fees collected from each individual receiving certification must be deposited into the snowmobile fund for purposes of establishing snowmobile safety programs.

Source:

S.L. 1979, ch. 439, § 1; 1983, ch. 453, § 1; 1985, ch. 448, § 3; 1987, ch. 485, § 4; 1991, ch. 640, § 10; 1993, ch. 80, § 10; 2005, ch. 342, § 3; 2015, ch. 274, § 1, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 274, S.L. 2015 became effective August 1, 2015.

Collateral References.

Snowmobile operation as DWI or DUI, 56 A.L.R.4th 1092.

39-24-10. Enforcement.

Peace officers of this state and their respective duly authorized representatives are hereby authorized to enforce the provisions of this chapter.

Source:

S.L. 1969, ch. 362, § 10; 1983, ch. 453, § 2.

39-24-11. Penalties.

Any person who violates subsection 12 of section 39-24-09 must be assessed a fee of one hundred dollars. Any person who violates subdivision b or g of subsection 5 of section 39-24-09 is guilty of a class B misdemeanor. Any person who violates subdivision c of subsection 5 of section 39-24-09 is guilty of an infraction or a class B misdemeanor as determined by section 39-24.1-07. Any person who violates subsection 11 of section 39-24-09 is guilty of a class B misdemeanor and must be assessed a fine of at least one hundred dollars. Any person who violates any other provision of section 39-24-09 must be assessed a fee of twenty dollars. Any person, unless specifically exempted, who fails to register or fails to display a decal as required by sections 39-24-02 and 39-24-04 must be assessed a fee of fifty dollars. If the person provides proof of registration after the violation, the fee may be reduced by one-half. Any person who violates any other provision of this chapter for which a specific penalty is not provided must be assessed a fee of ten dollars.

Source:

S.L. 1969, ch. 362, § 11; 1973, ch. 301, § 32; 1975, ch. 106, § 449; 1981, ch. 403, § 1; 1983, ch. 453, § 3; 1991, ch. 436, § 1; 1993, ch. 80, § 11; 1993, ch. 398, § 1; 1997, ch. 325, § 3; 1997, ch. 347, § 4; 2003, ch. 337, § 2; 2003, ch. 338, § 2.

Collateral References.

Snowmobile operation as DWI or DUI, 56 A.L.R.4th 1092.

CHAPTER 39-24.1 Snowmobile Operator Regulation

39-24.1-01. Implied consent to determine alcohol concentration and presence of drugs.

An individual who operates a snowmobile on any public land or private land with public access is deemed to have given consent, and shall consent, subject to this chapter, to a chemical test, or tests, of the blood, breath, or urine for the purpose of determining the alcohol concentration or presence of other drugs, or combination thereof, in the individual’s blood, breath, or urine. As used in this chapter, the definitions in section 39-24-01 apply, and in addition, “chemical test” means any test or tests to determine the alcohol concentration or presence of other drugs, or combination thereof, in the individual’s blood, breath, or urine, approved by the director of the state crime laboratory or the director’s designee under this chapter; and “drug” means any drug or substance or combination of drugs or substances which renders an individual incapable of safely operating a snowmobile. The chemical test must be administered at the direction of a law enforcement officer only after placing the individual, except individuals mentioned in section 39-24.1-04, under arrest and informing that individual that the individual is or will be charged with the offense of operating a snowmobile while under the influence of intoxicating liquor, drugs, or a combination thereof. For the purposes of this chapter, the taking into custody of a minor under section 27-20.4-05 satisfies the requirement of an arrest. The law enforcement officer shall also inform the individual charged that refusal of the individual to submit to the chemical test determined appropriate will result in that individual being prohibited from operating a snowmobile for up to three years. The law enforcement officer shall determine the chemical test to be used. When a minor is taken into custody for violating subdivision c of subsection 5 of section 39-24-09, the law enforcement officer shall diligently attempt to contact the minor’s parent or legal guardian to explain the cause for the custody and the implied consent chemical testing requirements. Neither the law enforcement officer’s efforts to contact, nor any consultation with, a parent or legal guardian may be permitted to interfere with the administration of chemical testing requirements under this chapter.

Source:

S.L. 1997, ch. 347, § 5; 2005, ch. 195, § 23; 2011, ch. 288, § 20; 2021, ch. 245, § 35, effective July 1, 2021.

39-24.1-02. Chemical test of operator in serious bodily injury or fatal accident.

Notwithstanding section 39-24.1-01 or 39-24.1-06, when the operator of a snowmobile is involved in an accident resulting in the death or serious bodily injury, as defined in section 12.1-01-04, of another person, and there is probable cause to believe that the operator is in violation of subdivision c of subsection 5 of section 39-24-09, the operator may be compelled by a law enforcement officer to submit to a chemical test.

Source:

S.L. 1997, ch. 347, § 5.

39-24.1-03. Individuals qualified to administer chemical test and opportunity for additional test.

Only an individual medically qualified to draw blood, acting at the request of a law enforcement officer, may withdraw blood for the purpose of determining the alcohol concentration or presence of other drugs, or combination thereof, in the individual’s blood. The director of the state crime laboratory or the director’s designee shall determine the qualifications or credentials for being medically qualified to draw blood, and shall issue a list of approved designations including medical doctor and registered nurse. This limitation does not apply to the taking of a breath or urine specimen. The director of the state crime laboratory, or the director’s designee, shall electronically post a copy of the certified list of approved designations, including medical doctor and registered nurse, with the state crime laboratory division of the attorney general at the attorney general website and shall make the certified records required by this section available for download in a printable format on the attorney general website. The individual tested may have an individual of that individual’s own choosing, who is medically qualified to draw blood, administer a chemical test in addition to any administered at the direction of a law enforcement officer with all costs of the additional chemical test to be the responsibility of the individual charged. The failure or inability to obtain an additional chemical test by an individual does not preclude the admission of the chemical test taken at the direction of a law enforcement officer. Upon the request of the individual who is tested, a copy of the operational checklist and test record of a breath sample test or analytical report of a blood or urine sample test taken at the direction of the law enforcement officer must be made available to that individual by the law enforcement agency that administered the chemical test.

Source:

S.L. 1997, ch. 347, § 5; 1999, ch. 358, § 10; 2005, ch. 195, § 24; 2011, ch. 288, § 21.

39-24.1-04. Consent of person incapable of refusal not withdrawn.

Any person who is dead, unconscious, or otherwise in a condition rendering that person incapable of refusal is deemed not to have withdrawn the consent provided by section 39-24.1-01 and the chemical test may be given.

Source:

S.L. 1997, ch. 347, § 5.

39-24.1-05. Action following chemical test result for a snowmobile operator.

If a person submits to a chemical test under section 39-24.1-01, 39-24.1-03, or 39-24.1-04 and the test shows that person to have the presence of a drug in that person’s body or an alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of the test within two hours after the operating of a snowmobile, the test is evidence of a per se violation of subdivision c of subsection 5 of section 39-24-09.

Source:

S.L. 1997, ch. 347, § 5.

39-24.1-06. Revocation of privilege to operate snowmobile upon refusal to submit to testing.

  1. If a person refuses to submit to testing under section 39-24.1-01, no chemical test may be given, but the law enforcement officer immediately shall issue to that person a summons or otherwise notify that person in writing to appear at the time and place specified in the summons or notice. The hearing and any appeal must be conducted as provided in section 39-06.1-03. If the person requests a hearing at a time and date other than as stated in the summons or notice, that person must post an appearance bond as required by subsection 2 of section 39-06.1-03. Upon establishing at the hearing by a preponderance of the evidence that the officer had probable cause to believe the person had been operating a snowmobile while in violation of subdivision c of subsection 5 of section 39-24-09 or had observed that the snowmobile was operated in a negligent, reckless, or hazardous manner as defined by the director by rule, that the person was lawfully arrested if applicable, and that the person had refused to submit to the chemical test under section 39-24.1-01, the court shall prohibit the person from operating a snowmobile on all public land or private land with public access for the appropriate period under this section, and shall impose a noncriminal statutory fee of five hundred dollars. A violation of this section must be reported to the parks and recreation department. The department shall keep a record of all reported violations. The period for which a person is prohibited from operating a snowmobile under this section is:
    1. One year if the person’s record shows that within the five years preceding the most recent refusal under this section, the person has not been prohibited from operating a snowmobile for a violation of this chapter or for a violation of subdivision c of subsection 5 of section 39-24-09.
    2. Two years if the person’s record shows that within the five years preceding the most recent refusal under this section, the person has once been prohibited from operating a snowmobile for a violation of this chapter or for a violation of subdivision c of subsection 5 of section 39-24-09.
    3. Three years if the person’s record shows that within the five years preceding the most recent refusal under this section, the person has twice been prohibited from operating a snowmobile under this chapter or for a violation of subdivision c of subsection 5 of section 39-24-09 and the prohibitions resulted from at least two separate arrests.
  2. A person may not be prohibited from operating a snowmobile under this section if:
    1. The person files an affidavit with the court before the time set for hearing in the summons or notice, or, with the permission of the court, within five days after the hearing. The affidavit must state that the person:
      1. Intends to voluntarily plead guilty to violating subdivision c of subsection 5 of section 39-24-09 within thirty days after the date of the offense;
      2. Agrees that the person may not operate a snowmobile for the appropriate period defined in section 39-24.1-07;
      3. Acknowledges the right to a section 39-06.1-03 administrative hearing and section 39-06.1-03 judicial review and voluntarily and knowingly waives these rights; and
      4. Agrees that the person may not operate a snowmobile for the appropriate period as provided under this section without an administrative hearing or judicial review, if the person does not plead guilty within thirty days after the date of the offense, or the court does not accept the guilty plea, or the guilty plea is withdrawn; and
    2. The person pleads guilty to violating subdivision c of subsection 5 of section 39-24-09 within thirty days after the date of the offense.

Source:

S.L. 1997, ch. 347, § 5.

39-24.1-07. Criminal penalties for operating snowmobile while having alcohol or drug concentrations.

Upon conviction of a violation of subdivision c of subsection 5 of section 39-24-09, the court shall impose the following minimum penalties:

  1. Notwithstanding subsection 7 of section 12.1-32-01, if the person’s record indicates that, within the five years preceding the date of the offense, the person has not violated subdivision c of subsection 5 of section 39-24-09 or the person has not been prohibited from operating a snowmobile under this chapter, the offense is an infraction. The court shall impose a minimum fine of two hundred fifty dollars and, as a condition of that person’s probation, shall prohibit that person from operating a snowmobile on all public land or private land with public access for sixty days within the snowmobile season that runs from December first through April first.
  2. If the person’s record indicates that, within the five years preceding the date of the offense, the person has one violation of subdivision c of subsection 5 of section 39-24-09 or the person has once been prohibited from operating a snowmobile under this chapter, the offense is a class B misdemeanor. The court shall impose a minimum fine of three hundred fifty dollars and, as a condition of that person’s probation, shall prohibit that person from operating a snowmobile on all public land or private land with public access for one year from the date of the sentence.
  3. If the person’s record indicates that, within the five years preceding the date of the offense, the person has had at least two violations of subdivision c of subsection 5 of section 39-24-09 or the person has at least twice been prohibited from operating a snowmobile under this chapter, the offense is a class B misdemeanor. The court shall impose a minimum fine of four hundred fifty dollars and, as a condition of that person’s probation, shall prohibit that person from operating a snowmobile on all public land or private land with public access for two years from the date of the sentence.

Source:

S.L. 1997, ch. 347, § 5; 2011, ch. 292, § 1.

39-24.1-08. Interpretation of chemical tests.

Upon the trial of any action or proceeding arising out of acts alleged to have been committed by any individual while operating a snowmobile while under the influence of intoxicating liquor, drugs, or a combination thereof, evidence of the amount of alcohol concentration or presence of other drugs, or a combination thereof, in the individual’s blood, breath, or urine at the time of the act alleged as shown by a chemical analysis of the blood, breath, or urine is admissible. For the purpose of this section:

  1. An individual having a drug in that individual’s body or an alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after operating a snowmobile is under the influence of intoxicating liquor, drugs, or a combination thereof at the time of operating a snowmobile.
  2. Alcohol concentration is based upon grams of alcohol per one hundred milliliters of blood or grams of alcohol per two hundred ten liters of end expiratory breath or grams of alcohol per sixty-seven milliliters of urine.
  3. The results of the chemical test must be received in evidence when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the director of the state crime laboratory or the director’s designee, and by an individual possessing a certificate of qualification to administer the test issued by the director of the state crime laboratory or the director’s designee. The director of the state crime laboratory or the director’s designee is authorized to approve satisfactory devices and methods of chemical tests and determine the qualifications of individuals to conduct such tests, and shall issue a certificate to every qualified operator. An operator shall exhibit the certificate upon demand of the individual requested to take the chemical test.
  4. The director of the state crime laboratory or the director’s designee may appoint, train, certify, and supervise field inspectors of breath testing equipment and its operation, and the inspectors shall report the findings of any inspection to the director of the state crime laboratory or the director’s designee for appropriate action. Upon approval of the methods or devices, or both, required to perform the tests and the individuals qualified to administer them, the director of the state crime laboratory or the director’s designee shall prepare, certify, and electronically post a written record of the approval with the state crime laboratory division of the attorney general at the attorney general website, and shall include in the record:
    1. An annual register of the specific testing devices currently approved, including serial number, location, and the date and results of last inspection.
    2. An annual register of currently qualified and certified operators of the devices, stating the date of certification and its expiration.
    3. The operational checklist and forms prescribing the methods currently approved by the director of the state crime laboratory or the director’s designee in using the devices during the administration of the tests.
    4. The certified records electronically posted under this section may be supplemented when the director of the state crime laboratory or the director’s designee determines it to be necessary, and any certified supplemental records have the same force and effect as the records that are supplemented.
    5. The state crime laboratory shall make the certified records required by this section available for download in a printable format on the attorney general website.
  5. Copies of the state crime laboratory certified records referred to in subsections 3 and 4 that have been electronically posted with the state crime laboratory division of the attorney general at the attorney general website must be admitted as prima facie evidence of the matters stated in the records.
  6. A certified copy of the analytical report of a blood or urine test issued by the director of the state crime laboratory or the director’s designee must be accepted as prima facie evidence of the results of a chemical test performed under this chapter.
  7. Superseded by N.D.R.Ev., Rule 707.
  8. A signed statement from the individual medically qualified to draw the blood sample for testing as set forth in subsection 3 is prima facie evidence that the blood sample was properly drawn and no further foundation for the admission of this evidence may be required.

Source:

S.L. 1997, ch. 347, § 5; 1999, ch. 278, § 64; 1999, ch. 358, § 11; 2001, ch. 120, § 1; 2005, ch. 195, § 25; 2007, ch. 339, § 4; 2011, ch. 288, § 22.

39-24.1-09. Proof of refusal admissible in any action or proceeding.

If the person under arrest refuses to submit to the chemical test, proof of refusal is admissible in any action or proceeding arising out of acts alleged to have been committed while the person was operating a snowmobile while under the influence of intoxicating liquor, drugs, or a combination thereof.

Source:

S.L. 1997, ch. 347, § 5.

39-24.1-10. Effect of evidence of chemical test.

This chapter does not limit the introduction of any other competent evidence bearing on the question of whether the person was under the influence of intoxicating liquor, drugs, or a combination thereof, but, if the chemical test results show a drug or an alcohol concentration of at least ten one-hundredths of one percent, the purpose of the evidence must be limited to the issues of probable cause, whether an arrest was made prior to the administering of the test, and the validity of the test results.

Source:

S.L. 1997, ch. 347, § 5.

39-24.1-11. Liability.

Any individual medically qualified to draw blood or any licensed physician, nurse, technician, or an employee of a hospital who draws blood from any person pursuant to a request of any arresting officer is not liable in any civil action for damages arising out of the act except for gross negligence.

Source:

S.L. 1997, ch. 347, § 5; 1999, ch. 358, § 12.

39-24.1-12. Operation of snowmobile during period of prohibition — Penalty.

Any person who operates a snowmobile on any public land or private land with public access during the period the person is prohibited from operating a snowmobile under this chapter is guilty of a class A misdemeanor.

Source:

S.L. 1997, ch. 347, § 5.

39-24.1-13. Fleeing or attempting to elude a peace officer.

  1. Any driver of a snowmobile who willfully fails or refuses to bring the snowmobile to a stop, or who otherwise flees or attempts to elude, in any manner, a pursuing police vehicle or peace officer, when given a visual or audible signal to bring the snowmobile to a stop, is guilty of a class B misdemeanor for a first or second offense and a class A misdemeanor for a subsequent offense. A signal complies with this section if the signal is perceptible to the driver and:
    1. If given from a vehicle, the signal is given by hand, voice, emergency light, or siren, and the stopping vehicle is appropriately marked showing it to be an official police vehicle; or
    2. If not given from a vehicle, the signal is given by hand, voice, emergency light, or siren, and the officer is in uniform or prominently displays the officer’s badge of office.
  2. Any sentence imposed under this section must include a minimum fine of at least five hundred dollars.

Source:

S.L. 1997, ch. 347, § 5; 2011, ch. 281, § 3.

CHAPTER 39-25 Regulation of Commercial Driver Training

39-25-01. Definitions.

  1. “Commercial driver training school” or “school” means a business enterprise conducted by a person for the education and training of individuals, either practically or theoretically, or both, to operate or drive a motor vehicle, and for which accepts consideration or charges tuition for the service.
  2. “Instructor” means an individual, whether acting on that individual’s own behalf as an operator of a commercial driver training school or for a school for compensation, who teaches, conducts a class for, gives demonstrations to, or supervises practice of, an individual learning to operate or drive a motor vehicle.
  3. “Certificate of course completion” means documentation signed by one or more driver education programs indicating the driver has met the classroom instruction and behind-the-wheel instruction requirements prescribed by the director.

Source:

S.L. 1969, ch. 363, § 1; 1993, ch. 54, § 106; 2013, ch. 311, § 1; 2015, ch. 275, § 3, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 3 of chapter 275, S.L. 2015 became effective August 1, 2015.

Collateral References.

Liability, for personal injury or property damage, for negligence in teaching or supervision of learning driver, 5 A.L.R.3d 271.

39-25-02. Duties of director — Regulations.

  1. The director shall adopt and prescribe regulations concerning the administration and enforcement of this chapter which are necessary to protect the public. The director shall inspect the school facilities, equipment of applicants and licensees, and examine applicants for instructor’s and examiner’s licenses or certifications.
  2. The director shall administer and enforce this chapter and shall adopt regulations for the administration and enforcement of this chapter.

Source:

S.L. 1969, ch. 363, § 2; 2013, ch. 311, § 2.

39-25-02.1. Waiver of skill test.

The director may waive the skill portion of the driver’s license examination if the applicant has successfully completed the classroom instruction and behind-the-wheel instruction requirements prescribed by the director. The director shall adopt and prescribe regulations concerning criteria for the classroom instruction and behind-the-wheel instruction requirements. A certificate of course completion must accompany the driver’s application as evidence that the applicant for a class D license has satisfactorily completed the classroom instruction and behind-the-wheel instruction requirements prescribed by the director.

History. S.L. 2015, ch. 275, § 4, effective August 1, 2015.

Effective Date.

This section became effective August 1, 2015.

39-25-03. School — License required — Contents of application for license.

  1. A commercial driver training school may not be established nor may any existing school continue to operate unless the school applies for and obtains from the director a license in the manner and form prescribed by the director.
  2. The application for license must include a statement of the location of the school, the equipment, courses of instruction, instructors, previous records of the school and instructors, financial statements, schedule of fees and charges, character and reputation of the operators, insurance, and any other matter as the director may prescribe for the protection of the public.

Source:

S.L. 1969, ch. 363, § 3; 2013, ch. 311, § 3.

39-25-04. Instructor — License required — Contents of application for license.

  1. An individual may not act as an instructor unless the individual applies for and obtains a license in the manner and form prescribed by this chapter.
  2. The regulations must state the requirements for an instructor’s license, including requirements concerning residency, language, moral character, physical condition, knowledge of the courses of instruction, motor vehicle laws and safety principles, previous personal and employment records, and any other matter as the director may prescribe for the protection of the public.

Source:

S.L. 1969, ch. 363, § 4; 2013, ch. 311, § 4; 2015, ch. 275, § 5, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 5 of chapter 275, S.L. 2015 became effective August 1, 2015.

39-25-05. Expiration and renewal of licenses — Fees.

A license expires on the last day of the calendar year and may be renewed upon application to the director as prescribed by the director’s regulations. Each application for an original or renewal school license must be accompanied by a fee of twenty-five dollars, and each application for an original or renewal instructor’s license must be accompanied by a fee of ten dollars. These fees must be deposited in the state treasury in the state highway fund. License fees may not be refunded in the event any license is rejected, suspended, or revoked.

Source:

S.L. 1969, ch. 363, § 5; 1985, ch. 449, § 1; 2013, ch. 311, § 5.

39-25-06. Refusal, suspension, or revocation of license.

The director may refuse to issue, or may suspend or revoke a license in any case when the director finds the applicant or licensee has violated any of the provisions of this chapter or the regulations adopted by the director. A suspended or revoked license must be returned to the director by the licensee.

Source:

S.L. 1969, ch. 363, § 6; 2013, ch. 311, § 6.

39-25-07. Exclusions — Free instruction — Colleges, universities, and high schools.

This chapter does not apply to any person giving driver training lessons without charge, to employers maintaining driver training schools without charge solely for that employer’s employees, nor to a school or a class conducted by a college, a university, or a high school for a regularly enrolled full-time or part-time student as a part of a normal program of the institution, except that a public driver education program may provide a certificate of course completion to be used by a driver to waive the skill portion of the driver’s license examination under section 39-25-02.1.

Source:

S.L. 1969, ch. 363, § 7; 2013, ch. 311, § 7; 2015, ch. 275, § 6, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 6 of chapter 275, S.L. 2015 became effective August 1, 2015.

39-25-08. Violations and penalties.

Any person who violates section 39-25-03 or 39-25-04 is guilty of a class B misdemeanor.

Source:

S.L. 1969, ch. 363, § 8; 1975, ch. 106, § 450.

Cross-References.

Classification of offenses, penalties, see § 12.1-32-01.

CHAPTER 39-26 Abandoned Motor Vehicles [Repealed]

Source:

Repealed by S.L. 2017, ch. 199, § 74, effective April 29, 2019.

CHAPTER 39-27 Motorcycle Equipment

39-27-01. Purpose.

It is the purpose of this chapter to establish performance and equipment requirements for the manufacture, sale, and safe operation of a motorcycle upon public highways and to furnish administrators with a guide for registration eligibility and continued conformity as related to motorcycles.

Source:

S.L. 1975, ch. 365, § 1.

Cross-References.

Recreation vehicle franchises, see ch. 51-20.

39-27-02. Manufacturer’s or distributor’s certification.

  1. The manufacturer or distributor shall provide a certification of the fact that a motorcycle or class of motorcycles is designed and manufactured for use upon public highways and complies with the performance and equipment requirements of this chapter and the rules and regulations promulgated hereunder.
  2. The certificate must be incorporated on the manufacturer’s statement of origin upon transfer of vehicle ownership.

Source:

S.L. 1975, ch. 365, § 2.

39-27-03. Frame-chassis requirements.

  1. The motorcycle frame-chassis, including the suspension components and engine mountings, must be of substantial construction, capable of supporting the combined weight of all vehicle components and riders for which the vehicle is designed, and withstand normal road shocks and operational stresses without constituting a hazard to the riders or other users of the highway.
  2. The wheelbase may not be less than forty inches [101.6 centimeters].

Source:

S.L. 1975, ch. 365, § 3.

39-27-04. Brakes.

  1. Every motorcycle must have either a split service brake system or two independently actuated service brake systems in accordance with rules adopted by the director pursuant to chapter 28-32. Brakes must act on the front and rear wheels.
  2. Every motorcycle must meet the requirements for brake system effectiveness, fade, and partial systems as specified in rules adopted by the director pursuant to chapter 28-32.
  3. All linkage, cables, pivots, and bearings must be free of excess (high) friction, with the front wheel brake cable so located and secured as not to become pinched between fork and frame members when wheel is turned completely to the right or left.
  4. Brake actuating devices must be in an accessible location, unencumbered by vehicle components, and so positioned that adequate leverage and safe operation is ensured. Service brake system controls and operation requirements must be in accordance with rules adopted by the director pursuant to chapter 28-32. A suitable mechanism must be provided for the purpose of automatically returning the actuating devices to normal position upon release.
  5. Motorcycle brakes must be capable of being adjusted automatically or manually with means provided to prevent unintentional adjustment.
  6. Each three-wheel motorcycle must be equipped with a parking brake of a friction type with a solely mechanical means to retain engagement.

Source:

S.L. 1975, ch. 365, § 4.

39-27-04.1. Brakes on motor-driven cycles.

The department may require an inspection of the brake on any motor-driven cycle and may disapprove any brake which is not so designed or constructed as to ensure reasonable and reliable performance in actual use.

Source:

S.L. 1979, ch. 431, § 36.

39-27-05. Tires, wheels, and rims.

  1. Motorcycle tires must be of pneumatic design with a minimum width of two and twenty-five hundredths inches [57.15 millimeters] designed for highway use.
  2. Tires on two-wheel motorcycles and the single tire on the front or rear of a three-wheel motorcycle must have a load capacity rating at least equal to their respective gross axle weight ratings. Each tire on the front or rear axle of a three-wheel motorcycle must have a load capacity rating at least equal to one-half the front or rear axle gross axle weight rating.
  3. Wheel rim diameters may not be less than ten inches [25.4 centimeters] or otherwise comply with title 49, Code of Federal Regulations, part 571, Federal Motor Vehicle Safety Standards, and must otherwise comply with applicable state standards, as promulgated by the director. Two-wheel motorcycles using low pressure tires are exempt from this subsection if the inflated height of the tire is twenty inches [508 millimeters] or greater.

Source:

S.L. 1975, ch. 365, § 5; 1985, ch. 450, § 1; 2009, ch. 345, § 2; 2011, ch. 271, § 18.

39-27-06. Steering and suspension systems.

  1. Motorcycle steering and suspension systems must be designed and engineered to provide the operator with the means of safely controlling vehicle direction under all maneuvers required for normal and safe operation.
  2. The rear wheel of a two-wheel motorcycle must track behind the front wheel within one inch [2.54 centimeters] with both wheels in a vertical plane when the vehicle is operating on a straight course. On a three-wheel motorcycle, the midpoint of the front or rear wheel track distance must be within one inch [2.54 centimeters] of the single front or single rear wheel track when the vehicle is proceeding on a straight course. The vehicle must be equipped with an adjustment feature that will provide proper wheel tracking.
  3. The steering head must be provided with a bearing or similar device that will allow the steering shaft to turn freely in rotational motion only.
  4. All motorcycles, except three-wheel motorcycles, must meet the following specifications in relationship to front wheel geometry:
  5. Handlebars must be of sturdy construction, adequate in size to provide proper leverage for steering, and capable of withstanding a minimum force of one hundred pounds [45.36 kilograms] applied to each handgrip in any direction. Handlebar grips may not be located above the shoulder height of the seated operator. The handlebars must provide a minimum of eighteen inches [45.72 centimeters] between grip after final assembly.
  6. Handlebars must be equipped with handgrips consisting of a material and surface pattern to ensure firm, nonslip gripping for the driver.
  7. Every motorcycle must be equipped with a suspension system and such suspension system must be applicable to at least the front wheel. The suspension system must be effective in reducing road shock and designed for the purpose of maximizing vehicle stability.

MAXIMUM: Rake: 45 degrees — Trail: 14 inches [35.56 centimeters] positive MINIMUM: Rake: 20 degrees — Trail: 2 inches [5.08 centimeters] positive

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Manufacturer’s specifications must include the specific rake and trail for each motorcycle or class of motorcycles and the terms “rake” and “trail” must be defined by the director by rules adopted pursuant to chapter 28-32.

Source:

S.L. 1975, ch. 365, § 6; 2007, ch. 346, § 1; 2011, ch. 271, § 19.

39-27-07. Fuel system.

  1. All fuel system components, including the tank, pump, tubing, hoses, clamps, and other components, must be securely fastened to the motorcycle so as not to interfere with vehicle operation and be leakproof when the vehicle is in its normal operating attitude.
  2. Fuel lines must be positioned in a manner to prevent their contact with the engine head, manifold, exhaust system, or other high temperature surfaces, or moving components. The fuel system must be adequately vented and provided with a fuel shutoff valve located between the fuel supply and the engine.

Source:

S.L. 1975, ch. 365, § 7.

39-27-08. Exhaust system — Prevention of noise.

Motorcycles must be equipped with an exhaust system incorporating a muffler or other mechanical device for the purpose of effectively reducing engine noise. Cutouts and bypasses in the exhaust system are prohibited. The system must be leakproof and all components must be securely attached to the vehicle and located so as not to interfere with the operation of the motorcycle. Shielding must be provided to prevent inadvertent contact with the exhaust system by the operator or passenger during normal operation. In addition, all motorcycles operating on streets and highways must meet the noise decibel limitations as established by the environmental protection agency. No person may sell, offer for sale, or install any noise suppressing system or device which will produce noise in excess of the maximum allowable decibel limitations of this section.

Source:

S.L. 1975, ch. 365, § 8; 1979, ch. 441, § 1.

39-27-09. Mirror.

Every motorcycle must be equipped with at least one mirror of unit magnification, securely affixed to the handlebar and capable of adjustment within a range that will reflect an image that includes at least the horizon and the road surface to the rear of the motorcycle. Such mirror must consist of a minimum reflective surface of ten square inches [64.52 square centimeters]. All mirrors shall not contain sharp edges or projections capable of producing injury.

Source:

S.L. 1975, ch. 365, § 9.

39-27-10. Fenders.

Each wheel of a motorcycle must be equipped with fenders or otherwise covered by the body configuration. Fenders must be securely mounted and of sufficient size and strength to minimize water or other road surface substances from coming in contact with the vehicle riders, or throwing the road substances unreasonably to the rear of the vehicle. Fender design must be effective in reducing side spray.

Source:

S.L. 1975, ch. 365, § 10.

39-27-11. Seat or saddle.

A seat or saddle securely attached to the vehicle must be provided for the use of the operator. The seat or saddle may not be less than twenty-five inches [63.5 centimeters] above a level road surface when measured to the lowest point on top of the seat or saddle cushion with the operator seated in a driving position. The seat or saddle adjustment locking device must prevent relative movement of the seat from its selected and secured position under all normal vehicle operating conditions.

Source:

S.L. 1975, ch. 365, § 11.

39-27-12. Chain guard.

Any drive chain on a motorcycle must be equipped with a chain guard or covering device to prevent chain or chain sprocket contact with any rider.

Source:

S.L. 1975, ch. 365, § 12.

39-27-13. Vehicle stand.

All motorcycles designed with two wheels must be equipped with a retracting vehicle stand to permit the vehicle to remain in an upright stored position without outside assistance. The stand may be of a side or center type and must be of substantial construction to hold the vehicle so equipped.

Source:

S.L. 1975, ch. 365, § 13.

39-27-14. Glazing.

When equipped, all motorcycle windscreens and windshields must meet the following standards:

  1. The glazing material must comply with the standards promulgated by rule of the director.
  2. The metal support must be of a material which bends rather than fragments under impact.
  3. Covering material, other than glazing, must be beaded at the edges to prevent fraying.

Source:

S.L. 1975, ch. 365, § 14.

39-27-15. Horn.

Every motorcycle must be equipped with an operative horn in good working order as described by subsection 1 of section 39-21-36. The horn must operate from a control device located on the left handlebar.

Source:

S.L. 1975, ch. 365, § 15.

39-27-16. Speedometer and odometer.

Every motorcycle must be equipped with a properly operating speedometer and odometer calibrated in miles [kilometers] per hour and miles [kilometers] respectively and must be fully illuminated when the headlamp is activated.

Source:

S.L. 1975, ch. 365, § 16.

39-27-17. Lighting equipment.

  1. A motorcycle must be equipped with lamps, reflective devices, and associated equipment as required by and in compliance with standards adopted by rule of the director.
  2. A gearbox indicator light, if provided, must be located within the operator’s field of vision.
  3. A headlamp beam indicator light must be located within the operator’s field of vision and illuminated automatically when the high beam of the headlamp is actuated.
  4. A motorcycle must be equipped with at least one taillamp in accordance with section 39-21-04.
  5. A motorcycle must be equipped with a stop lamp in accordance with subsection 1 of section 39-21-19.

Source:

S.L. 1975, ch. 365, § 17; 2007, ch. 347, § 1.

39-27-17.1. Headlamps on motorcycles.

  1. The headlamp or headlamps upon every motor-driven cycle may be of the single-beam or multiple-beam type.
  2. Every headlamp or headlamps on a motor-driven cycle must be of sufficient intensity to reveal a person or a vehicle at a distance of not less than one hundred feet [30.48 meters] when the motor-driven cycle is operated at any speed less than twenty-five miles [40.23 kilometers] per hour and at a distance of not less than two hundred feet [60.96 meters] when the motor-driven cycle is operated at a speed of twenty-five or more miles [40.23 or more kilometers] per hour, and at a distance of not less than three hundred feet [91.44 meters] when the motor-driven cycle is operated at a speed of thirty-five miles [56.33 kilometers] per hour.
  3. In the event the motor-driven cycle is equipped with a multiple-beam headlamp or headlamps the upper beam must meet the minimum requirements set forth above and may not exceed the limitations set forth in subsection 1 of section 39-21-20 and the lowermost beam must meet the requirements applicable to a lowermost distribution of light as set forth in subsection 2 of section 39-21-20.
  4. In the event the motor-driven cycle is equipped with a single-beam lamp or lamps the lamp or lamps must be so aimed that when the vehicle is loaded none of the high-intensity portion of light, at a distance of twenty-five feet [7.62 meters] ahead, projects higher than the level of the center of the lamp from which it comes.

Source:

S.L. 1979, ch. 431, § 35; 2007, ch. 347, § 2.

39-27-18. Passenger seat.

Motorcycles designed to carry more than one person must be equipped with a securely mounted seat for each passenger located to the side or rear of the driver such that the passenger seat does not interfere with the driver’s control or operation of the vehicle. In the case of a two-wheel vehicle, the passenger seat must be located on the longitudinal centerline of the motorcycle.

Source:

S.L. 1975, ch. 365, § 18.

39-27-19. Handhold. [Repealed]

Repealed by S.L. 1985, ch. 451, § 1.

39-27-20. Footrests.

Footrests must be provided for each designated seating position. Each footrest for a passenger must be so designed and constructed to support a static weight of two hundred fifty pounds [113.40 kilograms] applied at the center of the foot pedal. Footrests must be so located to provide reasonable accessibility for the passenger’s feet. Footrests must fold rearward or upward when not in use if the footrest protrudes beyond the width of the handlebars.

Source:

S.L. 1975, ch. 365, § 20.

39-27-21. Highway bars.

If a motorcycle is so equipped, highway bars must have a maximum width of twenty-six inches [66.04 centimeters], must be located less than fifteen inches [38.1 centimeters] from the foot controls, and may not interfere with the operation of the foot controls.

Source:

S.L. 1975, ch. 365, § 21.

39-27-22. Equipment approval.

All motorcycle lighting devices, electrical systems, brake components, glazing materials, and exhaust systems, incorporating a muffler or other mechanical exhaust device, required or optional, must be approved by the department before they will be available for use within the state.

Source:

S.L. 1975, ch. 365, § 22; 1979, ch. 441, § 2.

CHAPTER 39-28 Motorcycle Safety Education

39-28-01. Additional fees for motorized bicycle and motorcycle registration.

In addition to the fees required by section 39-04-19 for motorized bicycle and motorcycle registration, a motorcycle safety education fee of ten dollars is required at the time of registration of each motorized bicycle and motorcycle.

Source:

S.L. 1979, ch. 442, § 1; 1983, ch. 414, § 5; 2005, ch. 343, § 1.

39-28-02. Director to establish standards for motorcycle safety courses.

The director shall establish requirements for instructional standards, course approval, and teacher certification standards for motorcycle safety courses required by this chapter. Motorcycle safety courses may be offered by public schools and by approved organizations which meet instruction, course, and teacher certification requirements. The director may adopt rules governing the operation of motorcycle safety courses, administer moneys pursuant to this chapter, conduct audits and otherwise examine the records and accounts of approved motorcycle safety courses, and require other information as may be necessary to monitor the quality of motorcycle safety courses.

Source:

S.L. 1979, ch. 442, § 2; 1991, ch. 437, § 1.

39-28-03. Reimbursement for motorcycle safety courses.

The director shall reimburse public schools and organizations offering approved motorcycle safety courses for the actual cost of the courses. The amount of reimbursement for each student may not exceed the actual per-pupil cost for the motorcycle safety program.

Source:

S.L. 1979, ch. 442, § 3; 1991, ch. 437, § 2.

39-28-04. Motorcycle safety promotion.

The director, in cooperation with other state agencies, shall promote safety and awareness in the use and operation of motorcycles through advertising and other appropriate means, as provided by this chapter. The general public may provide input to improve motorcycle safety and education.

Source:

S.L. 1979, ch. 442, § 4.

39-28-05. Disposition of fees.

Any fee collected pursuant to this chapter must be deposited by the director with the state treasurer and credited to a special motorcycle safety education fund in the state treasury.

Source:

S.L. 1979, ch. 442, § 5.

CHAPTER 39-29 Off-Highway Vehicles

39-29-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Dealer” means any person engaged in the business of buying, selling, or exchanging off-highway vehicles or who advertises, or holds out to the public as engaged in the buying, selling, or exchanging of off-highway vehicles, or who engages in the buying of off-highway vehicles for resale.
  2. “Off-highway vehicle” means any motorized vehicle not designed for use on a highway and capable of cross-country travel on land, snow, ice, marsh, swampland, or other natural terrain. The term includes a motorized vehicle converted to operate on snow. The term does not include an electric bicycle. An off-highway vehicle must be classified into one of the following categories:
    1. Class I off-highway vehicle is a vehicle that does not qualify as road capable under chapters 39-21 and 39-27, has a seat or a saddle designed to be straddled by the operator, and has handlebars for steering control of two wheels.
    2. Class II off-highway vehicle is fifty inches [1270.00 millimeters] or less in width, weighs one thousand two hundred pounds [544.31 kilograms] or less, and travels on three or more nonhighway tires; or is sixty-five inches [1651 millimeters] or less in width, weighs two thousand pounds [907.19 kilograms] or less, and travels on four or more nonhighway tires.
    3. Class III off-highway vehicle weighs less than eight thousand pounds [3628.74 kilograms]; travels on skis, runners, tracks, or four or more tires; has a seat; has a wheel, handlebars, or t steering for steering control; and is designated for or capable of cross-country on or over land, water, sand, snow, ice, marsh, swampland, or other natural terrain, but does not include a vehicle registered by the department under chapter 39-04 or 39-24.
  3. “Operate” means to ride in or on and control the operation of an off-highway vehicle.
  4. “Operator” means an individual who operates or is in actual physical control of an off-highway vehicle.
  5. “Owner” means a person, other than a lienholder, having the property in or title to an off-highway vehicle and entitled to its use or possession.
  6. “Register” means the act of assigning a registration number to an off-highway vehicle.

Source:

S.L. 1985, ch. 452, § 1; 1987, ch. 486, § 1; 1999, ch. 360, § 1; 2005, ch. 344, § 2; 2005, ch. 345, § 1; 2013, ch. 310, § 2; 2021, ch. 278, § 6, effective August 1, 2021; 2021, ch. 299, § 2, effective August 1, 2021.

Note.

Section 39-29-01 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 6 of Chapter 278, Session Laws 2021, House Bill 1148; and Section 2 of Chapter 299, Session Laws 2021, House Bill 1068.

This chapter, designated as chapter 39-30 by chapter 452, S.L. 1985, was renumbered by the code revisor as chapter 39-29.

39-29-01.1. Safety fee — Imposition — Collection by dealer — Payment to department — Use of fee.

Upon the sale of a new or used off-highway vehicle, a dealer shall collect a five dollar safety fee from the buyer. By the end of each calendar quarter, the dealer shall file a report with the parks and recreation department which discloses the number of off-highway vehicles sold the previous months and includes the fees collected from the buyer. Fees imposed under this section must be deposited in the off-highway vehicle fund established under section 39-29-05. The fees may be used only by the parks and recreation department and only for off-highway vehicle safety education and promotion. The parks and recreation department shall report to the director within thirty days of the end of each calendar quarter the motor-powered recreational vehicle dealers that submitted a safety fee report and the number of vehicles sold, and shall identify every dealer not collecting or transmitting the safety fee.

Source:

S.L. 1987, ch. 486, § 2; 1991, ch. 640, § 11; 1993, ch. 80, § 12; 2005, ch. 344, § 3; 2009, ch. 342, § 3.

Note.

This section applies to all-terrain vehicles sold after June 30, 1987.

39-29-02. Off-highway vehicle registration.

Except as provided in this chapter, an individual may not operate an off-highway vehicle unless it has been registered under this chapter.

Source:

S.L. 1985, ch. 452, § 1; 2005, ch. 344, § 4.

39-29-03. Registration — Application — Issuance — Fees — Renewal.

  1. Application for registration must be made to the department of transportation in the form the department prescribes and furnishes. The registration must state the name and address of every owner of the off-highway vehicle and be signed by at least one owner. A copy of the application is evidence of registration for the first thirty days after the date of application.
  2. On receipt of an application and the appropriate fee, the department shall register the off-highway vehicle and assign a registration number and a certificate of registration. In addition, the department shall issue a decal made of reflectorized material which contains the registration number or the department shall issue one distinctive number plate upon the request of the owner. The operator of an off-highway vehicle shall securely affix and display the decal or the plate in a position as to provide clear legibility for identification. The certificate of registration must include information regarding the make, year, serial number, and name and address of the owner.
  3. The fee for registration of each off-highway vehicle is five dollars for a registration period of two years. For a duplicate or replacement registration number or registration card which is lost, mutilated, or becomes illegible, the department may charge a fee of not more than five dollars. For each off-highway vehicle registered under this chapter, there is an off-highway vehicle trail tax of fifteen dollars.
  4. The owner of an off-highway vehicle shall renew the registration in the manner the department prescribes and pay the registration fees and applicable tax provided in subsection 3.
  5. On application for registration as prescribed in subsection 2, and on payment of the amounts prescribed in subsection 3, an off-highway vehicle dealer is entitled to be issued registration numbers distinctively marked as dealer’s registration numbers. The dealer’s registration numbers may be used only on off-highway vehicles owned by the dealership.

Source:

S.L. 1985, ch. 452, § 1; 2005, ch. 344, § 5; 2009, ch. 344, § 1.

39-29-04. Exemption from registration — Exemption from fees.

  1. Registration and payment of fees is not required of:
    1. Off-highway vehicles owned and used by the United States or any state or its political subdivisions.
    2. Off-highway vehicles registered in a foreign country and temporarily used in this state.
    3. Off-highway vehicles validly licensed in another state and which have not been within this state for more than thirty consecutive days.
    4. Off-highway vehicles used exclusively on private lands.
    5. Off-highway vehicles used exclusively in organized track racing events.
  2. If an off-highway vehicle is exempt from registration under subdivision b or c of subsection 1, the owner shall purchase an out-of-state public trails and lands access permit received upon payment of a ten dollar per-year fee. Dealers or other agents authorized by the director of the parks and recreation department who sell out-of-state public trails and lands access permits may retain one dollar of the ten dollar per-year fee. The remainder of the fees collected under this subsection must be deposited in the off-highway vehicle fund.

Source:

S.L. 1985, ch. 452, § 1; 2005, ch. 344, § 6; 2017, ch. 275, § 1, effective July 1, 2017.

39-29-05. Disposition of registration fees and trail tax.

  1. Fees from registration of off-highway vehicles must be deposited with the state treasurer and credited to the highway tax distribution fund.
  2. The off-highway vehicle trail tax must be deposited in the off-highway vehicle fund in the state treasury. The parks and recreation department may, on appropriation by the legislative assembly, expend from that fund moneys for establishing off-highway vehicle facilities, use areas, and safety and education programs, and on enforcement of this chapter. The department may also use the fund to make grants to political subdivisions, governmental agencies, and nonprofit organizations for the purpose of developing and improving off-highway vehicle facilities and use areas and on promoting off-highway vehicle safety and education. The department may also use the fund to make grants to law enforcement agencies for the purpose of enforcing laws applicable to off-highway vehicles and to the use of off-highway vehicle facilities and use areas.

Source:

S.L. 1985, ch. 452, § 1; 1991, ch. 640, § 12; 1993, ch. 80, § 13; 2005, ch. 344, § 7; 2007, ch. 316, § 7; 2009, ch. 344, § 2.

39-29-06. Transfer or termination of off-highway vehicle ownership — Change of address of owner.

Within fifteen days after the transfer of any ownership interest in an off-highway vehicle, other than a security interest, or the destruction or abandonment of any off-highway vehicle, or a change of address of the owner as listed with the application for registration, written notice of the fact must be given by the new owner to the director in the form the director requires.

Source:

S.L. 1985, ch. 452, § 1; 2005, ch. 344, § 8.

39-29-07. Licensing by political subdivisions.

Political subdivisions of this state may not require licensing or registration of off-highway vehicles.

Source:

S.L. 1985, ch. 452, § 1; 2005, ch. 344, § 9.

39-29-08. Rules.

  1. The department shall adopt rules for the registration of off-highway vehicles and display of registration numbers.
  2. The director, in the interest of public health, welfare, and safety, may regulate, by rule, the operation of off-highway vehicles on state highways. The director’s authority to prohibit the use of off-highway vehicles is limited to the roadways, shoulders, inslopes, and medians within the right of way, except where such action is necessary to avoid an obstacle. Notwithstanding the racing prohibitions in section 39-08-03.1, the director may, on a case-by-case basis, permit organized and bona fide off-highway vehicle races on the ditch bottoms, backslopes, and the top of the backslopes of the state highway rights of way. The planning, organization, route selection, and safety precautions of any race are the sole responsibility of the person obtaining the permit. The director, the department, and the department’s employees do not incur any liability for permitting races.
  3. The director of the parks and recreation department shall adopt rules to regulate use of off-highway vehicles in state parks and other state-owned land under the supervision of the director of the parks and recreation department.
  4. The governing bodies of political subdivisions may adopt rules to regulate use of off-highway vehicles in areas under their jurisdiction. The governing body of a city may, by ordinance, regulate, restrict, and prohibit the use of off-highway vehicles operated in the city limits in areas under the exclusive jurisdiction of the city.

Source:

S.L. 1985, ch. 452, § 1; 1991, ch. 640, § 13; 1993, ch. 80, § 14; 2005, ch. 344, § 10.

39-29-09. Operation of off-highway vehicles.

  1. An individual may not operate an off-highway vehicle on the roadway, shoulder, or inside bank or slope of any road, street, or highway except as provided in this chapter. Except in emergencies, an individual may not operate an off-highway vehicle within the right of way of any controlled-access highway. An individual may operate a registered off-highway vehicle on a gravel, dirt, or loose surface roadway. An individual may operate a registered off-highway vehicle on a paved highway designated and posted at a speed not exceeding fifty-five miles [88.51 kilometers] per hour. A licensed driver over sixteen years of age may operate a registered class III off-highway vehicle on a paved highway designated and posted at a speed not exceeding sixty-five miles [104.61 kilometers] per hour. An individual may not operate an off-highway vehicle on a paved highway if the vehicle is unable to attain a speed, on a paved level surface, of at least thirty miles [48.28 kilometers] per hour.
  2. The operator of an off-highway vehicle may make a direct crossing of a street or highway only if:
    1. The crossing is made at an angle of approximately ninety degrees to the direction of the highway and at a place where no obstruction prevents a quick and safe crossing;
    2. The off-highway vehicle is brought to a complete stop before crossing the shoulder or main traveled way of the highway;
    3. The operator yields the right of way to all oncoming traffic which constitutes an immediate hazard; and
    4. In crossing a divided highway, the crossing is made only at an intersection of the highway with another public street or highway.
  3. Unless an individual is operating a class I off-highway vehicle, an individual may not operate an off-highway vehicle unless it is equipped with at least one headlamp, one taillamp, and brakes, all in working order, which conform to standards prescribed by rule of the director, except when under the direct supervision of an off-highway vehicle instructor teaching a certified off-highway vehicle safety training course, the requirement for a headlamp and taillamp may be waived.
  4. The emergency conditions under which an off-highway vehicle may be operated other than as provided by this chapter are only those that render the use of an automobile impractical under the conditions and at the time and location in question.
  5. An individual may not operate an off-highway vehicle in the following ways, which are declared to be unsafe and a public nuisance:
    1. At a rate of speed greater than reasonable or proper under all the surrounding circumstances.
    2. In a careless, reckless, or negligent manner so as to endanger the person or property of another or to cause injury or damage to another person or the property of another person.
    3. While under the influence of intoxicating liquor or a controlled substance.
    4. Without a lighted headlamp and taillamp except when used by an off-highway vehicle instructor during a certified off-highway vehicle safety training course.
    5. In any tree nursery or planting in a manner that damages growing stock.
    6. Without a manufacturer-installed or equivalent muffler in good working order and connected to the off-highway vehicle’s exhaust system.
    7. On any private land where the private land is posted prohibiting trespassing. The name and address of the person posting the land and the date of posting must appear on each sign in legible characters. The posted signs must be readable from outside the land and be placed conspicuously at a distance of not more than eight hundred eighty yards [804.68 meters] apart. Land entirely enclosed by a fence or other enclosure is sufficiently posted by posting of these signs at or on all gates through the fence or enclosure.
  6. Except as provided in section 39-29-10, an individual may not operate an off-highway vehicle without having in possession a valid driver’s license or permit.
  7. When an off-highway vehicle is operated within the right of way of any road, street, or highway, during times or conditions that warrant the use of lights by other motor vehicles, the off-highway vehicle must be operated in the same direction as the direction of other motor vehicles traveling on the side of the roadway immediately adjacent to the side of the right of way traveled by the off-highway vehicle.
  8. An individual may not operate an off-highway vehicle within the right of way of any highway while towing a sled, skid, or other vehicle, unless the object towed is connected to the off-highway vehicle by a hinged swivel and secure hitch.
  9. An individual under the age of eighteen years may not operate, ride, or otherwise be propelled on an off-highway vehicle unless the person wears a safety helmet meeting United States department of transportation standards.
  10. An operator of an off-highway vehicle may not carry a passenger while operating the vehicle unless the off-highway vehicle is equipped and recommended by the manufacturer to carry a passenger and the passenger is carried as recommended by the manufacturer.
  11. Unless otherwise provided by law, an off-highway vehicle may be operated on an aggregate road surface only when designated as part of an active off-highway vehicle trail by the managing entity.
  12. A person who is performing pest control or survey work for a political subdivision may operate an all-terrain vehicle on the bottom, backslope, inside slope, and shoulder of a highway other than a controlled-access highway.

Source:

S.L. 1985, ch. 452, § 1; 1987, ch. 486, § 3; 1993, ch. 399, § 1; 2005, ch. 344, § 11; 2005, ch. 345, § 2; 2005, ch. 346, § 1; 2007, ch. 348, § 2; 2013, ch. 310, § 3.

Collateral References.

Assimilation, under Assimilative Crimes Act (18 U.S.C.A. § 13), of state statutes relating to driving while intoxicated or under influence of alcohol, 175 A.L.R. Fed. 293.

39-29-09.1. Equipment.

To operate an off-highway vehicle on a paved highway or gravel, dirt, or loose surface roadway under subsection 1 of section 39-29-09, the off-highway vehicle must be equipped with a mirror in compliance with section 39-27-09, a horn in compliance with section 39-27-15, a speedometer and odometer in compliance with section 39-27-16, a brake light, a lighted headlamp in compliance with section 39-27-17.1, and a motor of at least three hundred fifty cubic centimeters.

Source:

S.L. 2007, ch. 348, § 1.

39-29-10. Operation by persons under age sixteen.

Except as otherwise provided in this section, an individual under sixteen years of age who is not in possession of a valid operator’s license or permit to operate an off-highway vehicle may not, except upon the lands of the individual’s parent or guardian or as a participant in an organized sporting event that involves the use of off-highway vehicles, operate an off-highway vehicle. An individual at least twelve years of age may operate an off-highway vehicle if the individual has completed an off-highway vehicle safety training course prescribed by the director of the parks and recreation department and has received the appropriate off-highway vehicle safety certificate issued by the director of the parks and recreation department. The failure of an operator to exhibit an off-highway vehicle safety certificate on demand to any official authorized to enforce this chapter is presumptive evidence that that person does not hold a certificate. Fees collected from each individual receiving certification must be deposited in the off-highway vehicle trail tax fund for off-highway vehicle safety education and training programs.

Source:

S.L. 1985, ch. 452, § 1; 1987, ch. 486, § 4; 1991, ch. 640, § 14; 1993, ch. 80, § 15; 2007, ch. 12, § 11; 2021, ch. 300, § 1, effective August 1, 2021.

39-29-11. Enforcement.

Only peace officers of this state and their respective duly authorized representatives may enforce this chapter.

Source:

S.L. 1985, ch. 452, § 1.

39-29-12. Penalties.

Violation of subdivision b, c, or g of subsection 5 of section 39-29-09 is a class B misdemeanor. Violation of any other provision of section 39-29-09 is an infraction for which a fee of twenty dollars must be assessed. Violation of section 39-29-02 or subsection 2 of section 39-29-04 is an infraction, for which a fee of fifty dollars must be assessed. If the individual provides proof of registration since the violation, the fee may be reduced by one-half. Violation of any other provision of this chapter is an infraction, for which a fee of ten dollars must be assessed.

Source:

S.L. 1985, ch. 452, § 1; 1991, ch. 438, § 1; 1993, ch. 80, § 16; 1993, ch. 400, § 1; 2005, ch. 344, § 12; 2017, ch. 275, § 2, effective July 1, 2017.

CHAPTER 39-29.1 Low-Speed Vehicles

39-29.1-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Low-speed vehicle” means a four-wheeled vehicle that is able to attain a speed, upon a paved level surface, of more than twenty miles [32 kilometers] per hour in one mile [1.6 kilometers] and not more than twenty-five miles [40 kilometers] per hour in one mile [1.6 kilometers] and may not exceed three thousand pounds [1361 kilograms] in weight when fully loaded with passengers and any cargo.
  2. “Operate” means to ride in or on and control the operation of a low-speed vehicle.
  3. “Register” means the act of assigning a registration number to a low-speed vehicle.

Source:

S.L. 1999, ch. 361, § 1; 2007, ch. 345, § 2.

39-29.1-02. Applicability.

A low-speed vehicle is a motor vehicle under this title, except:

  1. Chapter 39-22 does not apply to low-speed vehicles.
  2. Registration of a low-speed vehicle is governed by this chapter.
  3. A political subdivision may not require licensing or registration of low-speed vehicles.
  4. The governing body of a city may regulate, restrict, or prohibit the use of low-speed vehicles operating in the city limits in areas under the jurisdiction of the city.

Source:

S.L. 1999, ch. 361, § 1.

39-29.1-03. Low-speed vehicle registration — Application — Issuance — Fees — Renewal.

  1. An individual may not operate a low-speed vehicle unless the vehicle has been registered in accordance with this chapter.
  2. The department shall design and furnish an application that must be used to register a low-speed vehicle. The registration must state the name and address of every owner of the low-speed vehicle and must be signed by at least one owner. A copy of the application is evidence of registration for the first thirty days after the date of application.
  3. On receipt of an application and the appropriate fee, the department shall register the low-speed vehicle and assign a registration number and a certificate of registration. The certificate of registration must include information regarding the make, year, serial number, and name and address of the owner.
  4. The fee for registration of a low-speed vehicle is twenty dollars for each registration cycle of two years ending on March thirty-first. The department may prorate the initial registration fee. For a duplicate or replacement registration number or registration card that is lost, mutilated, or becomes illegible, the department may charge a fee of not more than five dollars.
  5. To renew a registration, the owner of a low-speed vehicle shall follow the procedure adopted by the department and pay the registration fee.
  6. The department may adopt rules for the registration of low-speed vehicles and the display of registration numbers.

Source:

S.L. 1999, ch. 361, § 1.

39-29.1-04. Low-speed vehicle dealers.

A low-speed vehicle dealer does not need a motor vehicle dealer’s license. Upon application and on payment of a twenty dollar fee, a low-speed vehicle dealer is entitled to be issued registration numbers distinctively marked as dealer’s registration numbers. The dealer’s numbers may be used only on low-speed vehicles owned by the dealership.

Source:

S.L. 1999, ch. 361, § 1.

39-29.1-05. Exemption from registration — Exemption from fees.

  1. Registration and payment of fees is not required of:
    1. A low-speed vehicle owned and used by the United States or another state or its political subdivisions.
    2. A low-speed vehicle registered in a foreign country and temporarily used in this state.
    3. A low-speed vehicle validly licensed in another state and which has not been in this state for more than thirty consecutive days.
    4. A low-speed vehicle used exclusively for work on private agricultural land or on an industrial jobsite on private land.
  2. A low-speed vehicle owned by this state or any of its political subdivisions are exempt from registration fees for low-speed vehicles.

Source:

S.L. 1999, ch. 361, § 1.

39-29.1-06. Transfer or termination of low-speed vehicle ownership — Change of address of owner.

Within fifteen days of a transfer of any ownership interest in a low-speed vehicle, other than a security interest, the destruction or abandonment of any low-speed vehicle, or a change of address of the owner as listed with the application for registration, written notice of the fact must be given by the last registered owner to the director in the form the director requires.

Source:

S.L. 1999, ch. 361, § 1.

39-29.1-07. Rules of operation.

A person may not operate a low-speed vehicle on a highway on which the speed limit exceeds thirty-five miles [56.33 kilometers] per hour. The operator of a low-speed vehicle may make a direct crossing of a highway on which the speed limit exceeds thirty-five miles [56.33 kilometers] per hour if the crossing is made so the operator can continue on a highway on which the speed limit does not exceed thirty-five miles [56.33 kilometers] per hour.

Source:

S.L. 1999, ch. 361, § 1.

39-29.1-08. Equipment.

A low-speed vehicle must be equipped with headlamps, front and rear turn signal lamps, taillamps, stop lamps, red reflex reflectors on each side as far to the rear of the vehicle as practicable and one red reflector on the rear, brakes, a parking brake, a windshield, a vehicle identification number, a safety belt assembly installed at each designated seating position, an exterior mirror mounted on the operator’s side of the vehicle, and either an exterior mirror mounted on the passenger’s side of the vehicle or an interior rearview mirror.

Source:

S.L. 1999, ch. 330, § 7; 1999, ch. 361, § 1; 2007, ch. 345, § 3.

39-29.1-09. Penalty.

A violation of this chapter for which there is no civil or criminal penalty in this title is a class B misdemeanor.

Source:

S.L. 1999, ch. 361, § 1.

CHAPTER 39-29.2 Unconventional Vehicles

39-29.2-01. Definitions.

As used in this chapter unless the context otherwise requires:

  1. “Identifying number” means the vehicle identification numbers and letters if any assigned by the manufacturer or by the department for the purpose of identifying a vehicle. The term includes any numbers or letters assigned by the manufacturer for the purpose of identifying a part of a vehicle or any number placed on a part in accordance with this chapter or rules of the department for the purpose of identifying the vehicle.
  2. “Unconventional vehicle” means a motor vehicle that is designed to travel on at least three wheels in contact with the ground, has an unladen weight of at least three hundred pounds [136.08 kilograms] but less than eight thousand pounds [3628.7 kilograms], has a permanent upright seat that does not require the operator to straddle or sit astride it, has a steering device for front wheel steering control, is capable of speeds in excess of sixty-five miles [104.61 kilometers] per hour, complies with equipment listed in chapter 39-21 or 39-27, as appropriate, and has an identifying number. The term does not include motor vehicles that otherwise may be registered under this title.

Source:

S.L. 2009, ch. 345, § 3; 2015, ch. 276, § 5, effective April 20, 2015.

Effective Date.

The 2015 amendment of this section by section 5 of chapter 276, S.L. 2015 became effective April 20, 2015, pursuant to an emergency clause in section 12 of chapter 276, S.L. 2015.

39-29.2-02. Certificate of title for unconventional vehicle.

The department shall issue a certificate of title for an unconventional vehicle in accordance with section 39-05-05.

Source:

S.L. 2009, ch. 345, § 3.

39-29.2-03. Registration of unconventional vehicle.

  1. Registration of an unconventional vehicle is governed by this chapter.
  2. An individual may not operate an unconventional vehicle on public roadways unless the vehicle has been registered under this chapter.
  3. The department shall design and furnish an application that must be used to register an unconventional vehicle. The registration must state the name and address of every owner of the unconventional vehicle and must be signed by at least one owner. A copy of the application is evidence of registration for the first thirty days after the date of application.
  4. On receipt of an application and the appropriate fee, the department shall register an unconventional vehicle and assign a registration number plate and a certificate of registration. The certificate of registration must include information regarding the make, year, identifying number, and name and address of the owner.
  5. The fee for registration of an unconventional vehicle is fifty dollars per year. For a duplicate or replacement registration number or registration card that is lost, mutilated, or becomes illegible, the department may charge a fee of not more than five dollars.
  6. To renew a registration, the owner of an unconventional vehicle shall follow the procedure adopted by the department and pay the registration fee.
  7. The department shall issue a plate in the same manner as a plate is issued to a motorcycle. Whenever the ownership of an unconventional vehicle registered under this chapter is transferred or assigned, the plates must be handled in accordance with subsection 1 of section 39-04-36.
  8. Funds collected from registration must be deposited in the motor vehicle registration fund.
  9. Every unconventional vehicle is subject to the motor vehicle body damage disclosure requirement of section 39-05-17.2.

Source:

S.L. 2009, ch. 345, § 3; 2015, ch. 276, §§ 6–8, effective April 20, 2015.

Effective Date.

The 2015 amendment of this section by sections 6-8 of chapter 276, S.L. 2015 became effective April 20, 2015, pursuant to an emergency clause in section 12 of chapter 276, S.L. 2015.

Note.

Section 39-29.2-03 was amended 3 times by the 2015 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 6 of Chapter 276, Session Laws 2015, Senate Bill 2312; Section 7 of Chapter 276, Session Laws 2015, Senate Bill 2312; Section 8 of Chapter 276, Session Laws 2015, Senate Bill 2312.

39-29.2-04. Operation of unconventional vehicle.

To operate an unconventional vehicle on a highway, the operator must be a class D licensed driver. An operator may operate an unconventional vehicle on any highway.

Source:

S.L. 2009, ch. 345, § 3; 2015, ch. 276, § 9, effective April 20, 2015.

Effective Date.

The 2015 amendment of this section by section 9 of chapter 276, S.L. 2015 became effective April 20, 2015, pursuant to an emergency clause in section 12 of chapter 276, S.L. 2015.

39-29.2-05. Equipment.

Operators and passengers in an unconventional vehicle shall comply with seatbelt use laws.

History. S.L. 2015, ch. 276, § 10, effective April 20, 2015.

Effective Date.

This section became effective April 20, 2015, pursuant to an emergency clause in section 12 of chapter 276, S.L. 2015.

39-29.2-06. Manufacturer’s or distributor’s certification.

  1. The manufacturer or distributor shall certify that an unconventional vehicle is designed and manufactured for use upon public highways and complies with the rules adopted under this chapter. An individual who manufactures an unconventional vehicle for personal use does not have to meet the certification requirements of this section, but shall comply with the rules adopted under this chapter.
  2. The certificate must be incorporated on the manufacturer’s statement of origin upon transfer of vehicle ownership.

History. S.L. 2015, ch. 276, § 11, effective April 20, 2015.

Effective Date.

This section became effective April 20, 2015, pursuant to an emergency clause in section 12 of chapter 276, S.L. 2015.

CHAPTER 39-30 Motor Vehicle Chop Shops

39-30-01. Definitions.

As used in this chapter, unless the context or subject matter otherwise requires:

  1. “Chop shop” means any building, lot, or other premises where one or more persons knowingly, as defined by section 12.1-02-02, engage in altering, destroying, disassembling, dismantling, reassembling, or storing any motor vehicle, or motor vehicle part known to be illegally obtained by theft, fraud, or conspiracy to defraud, in order to either:
    1. Alter, counterfeit, deface, destroy, disguise, falsify, forge, obliterate, or remove the identity, including the vehicle identification number of the motor vehicle or motor vehicle part, in order to misrepresent the identity of the motor vehicle or motor vehicle part, or to prevent the identification of the motor vehicle or motor vehicle part; or
    2. Sell or dispose of the motor vehicle or motor vehicle part.
  2. “Motor vehicle” includes every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, which is self-propelled or which may be connected to and towed by a self-propelled device, and includes any and all other land-based devices that are self-propelled but which are not designed for use upon a highway, including farm machinery and construction equipment.
  3. “Person” includes a natural person, company, corporation, limited liability company, unincorporated association, partnership, professional corporation, professional limited liability company, and any other legal entity.
  4. “Unidentifiable” means that the uniqueness of a motor vehicle or motor vehicle part cannot be established by either expert law enforcement investigative personnel specially trained and experienced in motor vehicle theft investigative procedures and motor vehicle identification examination techniques, or by expert employees of not-for-profit motor vehicle theft prevention agencies specially trained and experienced in motor vehicle theft investigation procedures and motor vehicle identification examination techniques.
  5. “Vehicle identification number” means a number or numbers, a letter or letters, a character or characters, a datum or data, a derivative or derivatives, or a combination or combinations thereof, used by the manufacturer or the department of transportation for the purposes of uniquely identifying a motor vehicle or motor vehicle part. The term includes a number or numbers, a letter or letters, a character or characters, a datum or data, a derivative or derivatives, or a combination or combinations thereof.

Source:

S.L. 1991, ch. 439, § 1; 1993, ch. 54, § 106.

39-30-02. Violations and penalties.

  1. It is a class B felony if any person knowingly, as defined in section 12.1-02-02, and with intent that a violation of subsection 2 be committed:
    1. Owns, operates, or conducts a chop shop;
    2. Transports any motor vehicle or motor vehicle part to or from a location knowing it to be a chop shop; or
    3. Sells, transfers, purchases, or receives any motor vehicle or motor vehicle part either to or from a location knowing it to be a chop shop.
  2. Any person who knowingly, as defined in section 12.1-02-02, alters, counterfeits, defaces, destroys, disguises, falsifies, forges, obliterates, or knowingly removes a vehicle identification number, with the intent to misrepresent the identity or prevent the identification of a motor vehicle or motor vehicle part, is guilty of a class B felony.
    1. Any person who buys, disposes, sells, transfers, or possesses a motor vehicle or motor vehicle part, with knowledge that the vehicle identification number of the motor vehicle or motor vehicle part has been altered, counterfeited, defaced, destroyed, disguised, falsified, forged, obliterated, or removed, is guilty of a class B felony.
    2. The provisions of subdivision a do not apply to a motor vehicle scrap processor who, in the normal legal course of business and in good faith, processes a motor vehicle or motor vehicle part by crushing, compacting, or other similar methods, provided that any vehicle identification number is not removed from the motor vehicle or motor vehicle part prior to or during any such processing.
    3. The provisions of subdivision a do not apply to any owner or authorized possessor of a motor vehicle or motor vehicle part which has been recovered by law enforcement authorities after having been stolen or when the condition of the vehicle identification number of the motor vehicle or motor vehicle part is known to or has been reported to law enforcement authorities. It is presumed that law enforcement authorities have knowledge of all vehicle identification numbers on a motor vehicle or motor vehicle part which are altered, counterfeited, defaced, disguised, falsified, forged, obliterated, or removed, when law enforcement authorities deliver or return the motor vehicle or motor vehicle part to its owner or authorized possessor after it has been recovered by law enforcement authorities after having been reported stolen.
  3. No prosecution may be brought, and no person may be convicted, of any violation under this section, if acts of the person otherwise constituting a violation were done in good faith in order to comply with the laws or regulations of any state or territory of the United States or of the federal government of the United States.
  4. The sentence imposed upon a person convicted of any violation of this section may not be reduced to less than four years imprisonment for a second conviction of any violation of this section, or less than eight years for a third or subsequent conviction of any violation of this section, and no sentence imposed upon a person for a second or subsequent conviction of any violation of this section may be suspended or reduced until the person has served the minimum period of imprisonment provided in this section. A person convicted of a second or subsequent violation of this section is not eligible for probation, parole, furlough, or work release.
    1. In addition to any punishment, a person who violates this section, must be ordered to make restitution to the lawful owner or owners of the stolen motor vehicle or vehicles or the stolen motor vehicle part or parts, or to the owner’s insurer to the extent that the owner has been compensated by the insurer, and to any other person for any financial loss sustained as a result of a violation of this section.
    2. The court shall determine the extent and method of restitution. In an extraordinary case, the court may determine that the best interests of the victim and justice would not be served by ordering restitution. In any such case, the court shall make and enter specific written findings on the record concerning the extraordinary circumstances presented which militated against restitution.

As used in this section, “financial loss” includes loss of earnings, out-of-pocket and other expenses, repair and replacement costs, and claims payments. As used in this section, “lawful owner” includes an innocent bona fide purchaser for value of a stolen motor vehicle part who does not know that the motor vehicle or part is stolen or an insurer to the extent that the insurer has compensated a bona fide purchaser for value.

Source:

S.L. 1991, ch. 439, § 2.

39-30-03. Seizure of equipment.

  1. Any tool, implement, or instrumentality, including a motor vehicle or motor vehicle part, used or possessed in connection with any violation of section 39-30-02 may be seized by a member of a state or local law enforcement agency upon process issued by any court of competent jurisdiction.
  2. Seizure of property described in subsection 1 may be made by a member of a state or local law enforcement agency without process:
    1. If in accordance with any applicable law or regulation;
    2. If the seizure is incident to inspection under an administrative inspection warrant;
    3. If the seizure is incident to search made under a search warrant;
    4. If the seizure is incident to a lawful arrest;
    5. If the seizure is made pursuant to a valid consent to search;
    6. If the property seized has been the subject of a prior judgment in favor of the state in a criminal proceeding or in an injunction or forfeiture proceeding under section 39-30-05; or
    7. If there are reasonable grounds to believe that the property is directly or indirectly dangerous to health or safety.
  3. When property is seized under this section, the seizing agency may:
    1. Place the property under seal; or
    2. Remove the property to a place selected and designated by the seizing party.

Source:

S.L. 1991, ch. 439, § 3.

39-30-04. Forfeiture of property.

  1. The following are subject to forfeiture unless obtained by theft, fraud, or conspiracy to defraud and the rightful owner is known or can be identified and located:
    1. Any tool;
    2. Any implement; or
    3. Any instrumentality, including any motor vehicle or motor vehicle part, whether owned or unowned by the person from whose possession or control it was seized, which is used or possessed either in violation of section 39-30-02 or to promote or facilitate a violation of section 39-30-02.
  2. Any motor vehicle, other conveyance, or motor vehicle part used by any person as a common carrier is subject to forfeiture under this section if the owner or other person in charge of the motor vehicle, other conveyance, or motor vehicle part is a consenting party to a violation of section 39-30-02.
  3. Any motor vehicle, motor vehicle part, other conveyance, tool, implement, or instrumentality is not subject to forfeiture under this section by reason of any act or omission that the owner proves to have been committed or omitted without the owner’s knowledge or consent.
    1. Seizing agencies shall utilize their best efforts to identify any seized motor vehicle or motor vehicle part to determine ownership or the identity of any other person having a right or interest in it. In its reasonable identification and owner location attempts, the seizing agency shall cause the stolen motor vehicle files of all law enforcement agencies to be searched for stolen or wanted information on motor vehicles similar to the seized motor vehicle or consistent with the seized motor vehicle part.
    2. If a motor vehicle or motor vehicle part has an apparent value in excess of one thousand dollars:
      1. The seizing agency shall consult with an expert of the type specified in subsection 4 of section 39-30-01; and
      2. The seizing party shall request searches of the online and offline files of the national crime information center and the national automobile theft bureau when files have been searched with negative results.
  4. A forfeiture of a motor vehicle, motor vehicle part, or other conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission forming the ground for the forfeiture.
  5. Property, described in subsection 1, seized and held for forfeiture, is not subject to replevin and is subject only to the order and judgments of a court of competent jurisdiction hearing the forfeiture proceedings.
    1. A state’s attorney in the county where the seizure occurs shall bring an action for forfeiture in a court of competent jurisdiction. The forfeiture action must be brought within sixty days from the date of seizure except when the state’s attorney in the sound exercise of discretion determines that no forfeiture action should be brought because of the rights of property owners, lienholders, or secured creditors, or because of exculpatory, exonerating, or mitigating facts and circumstances.
    2. The state’s attorney shall give notice of the forfeiture proceeding by mailing a copy of the complaint in the forfeiture proceeding to each person whose right, title, or interest is of record maintained in the department of transportation, or any other department of the state, or any other state or territory of the United States, or of the federal government if the property is required to be registered in any such department.
    3. Notice of the proceeding must be given to any other person as may appear, from the facts and circumstances, to have any right, title, or interest in or to the property.
    4. The owner of the property, or any person having or claiming right, title, or interest in the property may within sixty days after the mailing of such notice file a verified answer to the complaint and may appear at the hearing on the action for forfeiture.
    5. The state’s attorney must show at a forfeiture hearing, by a preponderance of the evidence, that the property was used in the commission of a violation of section 39-30-02 or was used or possessed to facilitate such violation.
    6. The owner of property may show by a preponderance of the evidence that the owner did not know, and did not have reason to know, that the property was to be used or possessed in the commission of any violation or that any of the exceptions to forfeiture are applicable.
    7. Unless the state’s attorney makes the required showing, the court shall order the property released to the owner. If the state’s attorney has made such a showing, the court may order:
      1. The property be destroyed by the agency that seized it or some other agency designated by the court;
      2. The property be delivered and retained for use by the agency that seized it or some other agency designated by the court; or
      3. The property be sold at public sale.
  6. A copy of a forfeiture order must be filed with the sheriff of the county in which the forfeiture occurs and with each federal or state department with which the property is required to be registered. The order, when filed, constitutes authority for the issuance to the agency to which the property is delivered and retained for use or to any purchaser of the property of a title certificate, registration certificate, or other special certificate as may be required by law considering the condition of the property.
  7. Proceeds from the sale at public auction, after payment of all reasonable charges and expenses incurred by the agency designated by the court to conduct the sale in storing and selling the property, must be paid to the general fund of the county of seizure.
  8. No motor vehicle, either seized under section 39-30-03 or forfeited under this section, may be released by the seizing agency or used or sold by an agency designated by the court unless any altered, counterfeited, defaced, destroyed, disguised, falsified, forged, obliterated, or removed vehicle identification number is corrected by the issuance and affixing of either assigned or replacement vehicle identification number plates as may be appropriate under laws of this state.
  9. No motor vehicle part having any altered, counterfeited, defaced, destroyed, disguised, falsified, forged, obliterated, or removed vehicle identification number may be disposed of upon forfeiture except by destruction. This subsection does not apply to any motor vehicle part that is assembled with and constitutes part of a motor vehicle.
  10. No motor vehicle or motor vehicle part may be forfeited under this section solely on the basis that it is unidentifiable. Instead of forfeiture, any seized motor vehicle or motor vehicle part that is unidentifiable must be the subject of a written report sent by the seizing agency to the department of transportation. The report must include a description of the motor vehicle or motor vehicle part, its color, if any, the date, time, and place of its seizure, the name of the person from whose possession or control it was seized, the grounds for its seizure, and the location where it is held or stored.
  11. When a seized unidentifiable motor vehicle or motor vehicle part has been held for sixty days or more after the notice to the department of transportation specified in subsection 12 has been given, the seizing agency, or its agent, shall cause the motor vehicle or motor vehicle part to be sold at public sale to the highest bidder. Notice of the time and place of sale must be posted in a conspicuous place for at least thirty days prior to the sale on the premises where the motor vehicle or motor vehicle part has been stored.
  12. If a seized unidentifiable motor vehicle or motor vehicle part has an apparent value of one thousand dollars or less, the seizing agency shall authorize the disposal of the motor vehicle or motor vehicle part, provided that no such disposition may be made less than sixty days after the date of seizure.
  13. The proceeds of the public sale of an unidentifiable motor vehicle or motor vehicle part must be deposited in the general fund of the state or other governmental unit after deduction of any reasonable and necessary towing and storage charges.
  14. Seizing agencies shall utilize their best efforts to arrange for the towing and storing of motor vehicles and motor vehicle parts in the most economical manner possible. The owner of a motor vehicle or a motor vehicle part may not be required to pay more than the minimum reasonable costs of towing and storage.
  15. A seized motor vehicle or motor vehicle part that is neither forfeited nor unidentifiable must be held subject to the order of the court in which the criminal action is pending or, if a request for its release from such custody is made, until the state’s attorney has notified the defendant or the defendant’s attorney of such request and both the prosecution and defense have been afforded a reasonable opportunity for an examination of the property to determine its true value and to produce or reproduce, by photographs or other identifying techniques, legally sufficient evidence for introduction at trial or other criminal proceedings. Upon expiration of a reasonable time for the completion of the examination, which may not exceed fourteen days from the date of service upon the defense of the notice of request for return of property, the property must be released to the person making such request after satisfactory proof of the person’s entitlement to possession. Notwithstanding the foregoing, upon application by either party with notice to the other, the court may order retention of the property if it determines that retention is necessary in the furtherance of justice.
  16. When a seized vehicle is forfeited, restored to its owner, or disposed of as unidentifiable, the seizing agency shall retain a report of the transaction for a period of at least one year from the date of the transaction.
  17. When an applicant for a certificate of title or salvage certificate presents to the department of transportation proof that the applicant purchased or acquired a motor vehicle at a public sale conducted pursuant to this section and such fact is attested to by the seizing agency, the department of transportation shall issue a certificate of title, salvage certificate for the motor vehicle upon receipt of the statutory fee, properly executed application for a certificate of title, or other certificate of ownership, and the affidavit of the seizing agency that a state-assigned number was applied for and affixed to the motor vehicle prior to the time that the motor vehicle was released by the seizing agency to the purchaser.

Source:

S.L. 1991, ch. 439, § 4.

39-30-05. Civil proceedings and remedies.

  1. The attorney general, any state’s attorney, or any aggrieved person may institute civil proceedings against any person in any court of competent jurisdiction seeking relief from conduct constituting a violation of any provision of this chapter. If the plaintiff in such a proceeding proves the alleged violation, or its threat, by a preponderance of the evidence, any court of competent jurisdiction after due provision for the rights of innocent persons, shall grant relief by entering any appropriate order or judgment, including:
    1. Ordering any defendant to be divested of any interest in any property;
    2. Imposing reasonable restrictions upon the future activities or investments of any defendant, including prohibiting any defendant from engaging in the same type of endeavor as the defendant was engaged in previously;
    3. Ordering the suspension or revocation of a license, permit, or prior approval granted by any public agency or any other public authority;
    4. Ordering the surrender of the charter of a corporation organized under the laws of the state or the revocation of a certificate authorizing a foreign corporation to conduct business within the state upon finding that the board of directors or a managerial agent acting on behalf of the corporation, in conducting the affairs of the corporation, has authorized or engaged in conduct made unlawful by this chapter and that, for the prevention of future criminal conduct, the public interest requires the charter of the corporation be surrendered and the corporation dissolved or the certificate revoked; or
    5. Ordering the surrender of the certificate of organization of a limited liability company organized under the laws of the state or the revocation of a certificate authorizing a foreign limited liability company to conduct business within the state upon finding that the board of governors or a managerial agent acting on behalf of the limited liability company, in conducting the affairs of the limited liability company, has authorized or engaged in conduct made unlawful by this chapter and that, for the prevention of future criminal conduct, the public interest requires that the certificate of organization of the limited liability company be surrendered and the limited liability company dissolved or the certificate revoked.
  2. In a proceeding under this section, injunctive relief must be granted in conformity with the principles that govern the granting of relief from injury or threatened injury in other cases, but no showing of special or irreparable injury must be made. Pending final determination of a proceeding under this section, a temporary restraining order or a preliminary injunction may be issued upon a showing of immediate danger of significant injury, including the possibility that any judgment for money damages might be difficult to execute, and, in a proceeding initiated by an aggrieved person, upon the execution of proper bond against injury for an injunction improvidently granted.
  3. Any person injured, directly or indirectly, by conduct constituting a violation by any person of section 39-30-02, in addition to any other relief, has a cause of action for threefold the actual damages sustained by the person.
  4. A final judgment or decree rendered against the defendant in any civil or criminal proceeding estops the defendant in any subsequent civil action or proceeding brought by any person as to all matters to which the judgment or decree would be an estoppel between the parties to the civil or criminal proceeding.
  5. Notwithstanding any other provision of law providing a shorter period of limitations, a civil action under this section may be commenced at any time within five years after the conduct made unlawful under section 39-30-02 terminates or the cause of action accrues or within any longer statutory period that may be applicable. If any action is brought by a state’s attorney to punish, prevent, or restrain any activity made unlawful under section 39-30-02, the running of the period of limitations is suspended during the pendency of such action and for two years following its termination.
  6. Personal service of any process in any action under this section may be made upon any person outside the state if the person has engaged in any conduct constituting a violation of section 39-30-02 in this state. The person is deemed to have thereby submitted to the jurisdiction of the courts of this state for the purposes of this provision.
  7. Obtaining any civil remedy under this section does not preclude obtaining any other civil or criminal remedy under either this chapter or any other provision of law. Civil remedies under this section are supplemental and not mutually exclusive.

Source:

S.L. 1991, ch. 439, § 5; 1993, ch. 54, § 87.

39-30-06. Venue.

A criminal prosecution for any violation may be commenced in any county without regard to place of occurrence.

Source:

S.L. 1991, ch. 439, § 6.

CHAPTER 39-31 Common Household Goods Carriers

39-31-01. Common household goods carrier defined.

In this chapter, unless the context otherwise requires, “common household goods carrier” means any person that holds oneself out to the public as willing to undertake for hire to transport by motor vehicle from place to place the household goods of others who may choose to employ that person.

Source:

S.L. 1995, ch. 386, § 1.

39-31-02. Application of chapter to intrastate commerce.

This chapter applies to persons and motor vehicles engaged in intrastate commerce only to the extent permitted by the constitution and laws of the United States and this state.

Source:

S.L. 1995, ch. 386, § 1.

39-31-03. Carriers must operate in accordance with law and rules.

It is unlawful for any common household goods carrier to transport persons or property for hire unless:

  1. The carrier has obtained a household goods carrier permit required by this chapter; and
  2. The carrier complies with this chapter and any applicable rules adopted by the department.

Source:

S.L. 1995, ch. 386, § 1; 2015, ch. 277, § 1, effective April 8, 2015.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 277, S.L. 2015 became effective July 1, 2015.

39-31-04. Regulation of common household goods carriers by the department.

The department may regulate common motor carriers of household goods except for transportation provided wholly within a city in this state or within a distance beyond the corporate limits of a city as determined by the department and shall supervise the relations between common household goods carriers and the public to comply with the provisions of this chapter.

Source:

S.L. 1995, ch. 386, § 1; 2015, ch. 277, § 2, effective April 8, 2015.

Effective Date.

The 2015 amendment of this section by section 2 of chapter 277, S.L. 2015 became effective July 1, 2015.

39-31-05. Household goods carriers — Transportation of commodities. [Repealed]

Source:

S.L. 1995, ch. 386, § 1; repealed by 2015, ch. 277, § 8, effective July 1, 2015.

Effective Date.

The repeal of this section by section 8 of chapter 277, S.L. 2015 became effective July 1, 2015.

39-31-06. Household goods carrier — Household goods carrier permit application.

A common household goods carrier may not operate within this state without having obtained from the department a household goods carrier permit. An application must be upon the form prescribed by the department. The application must contain proof of registration with the secretary of state, and either proof of workers compensation insurance coverage or an affidavit of nonemployment. The department shall deny issuing a household goods carrier permit if the applicant submits an incomplete application.

Source:

S.L. 1995, ch. 386, § 1; 2015, ch. 277, § 3, effective April 8, 2015.

Effective Date.

The 2015 amendment of this section by section 3 of chapter 277, S.L. 2015 became effective July 1, 2015.

39-31-07. Notice of opportunity for comment on application. [Repealed]

Source:

S.L. 1995, ch. 386, § 1; repealed by 2015, ch. 277, § 8, effective July 1, 2015.

Effective Date.

The repeal of this section by section 8 of chapter 277, S.L. 2015 became effective July 1, 2015.

39-31-08. Factors to be considered by department in granting certificate. [Repealed]

Source:

S.L. 1995, ch. 386, § 1; repealed by 2015, ch. 277, § 8, effective July 1, 2015.

Effective Date.

The repeal of this section by section 8 of chapter 277, S.L. 2015 became effective July 1, 2015.

39-31-09. Testimony — Issuance of certificate of permit — Conditions. [Repealed]

Source:

S.L. 1995, ch. 386, § 1; repealed by 2015, ch. 277, § 8, effective July 1, 2015.

Effective Date.

The repeal of this section by section 8 of chapter 277, S.L. 2015 became effective July 1, 2015.

39-31-10. Reasonable rates to be made by household goods carriers. [Repealed]

Source:

S.L. 1995, ch. 386, § 1; repealed by 2015, ch. 277, § 8, effective July 1, 2015.

Effective Date.

The repeal of this section by section 8 of chapter 277, S.L. 2015 became effective July 1, 2015.

39-31-11. Permits duration — Transfer.

Household goods carrier permits issued to carriers by the department under this chapter remain in force subject to this chapter. Those permits are transferable only upon approval by the department.

Source:

S.L. 1995, ch. 386, § 1; 2015, ch. 277, § 4, effective April 8, 2015.

Effective Date.

The 2015 amendment of this section by section 4 of chapter 277, S.L. 2015 became effective July 1, 2015.

39-31-12. Fees — Household goods carrier.

Every household goods carrier operating in this state, when applying for a household goods carrier permit, shall pay a fee of one hundred dollars. The nonrefundable fee for an application for transfer of a household goods carrier permit is one hundred dollars. The annual filing fee for maintaining a household goods carrier permit is thirty-five dollars.

Source:

S.L. 1995, ch. 386, § 1; 2015, ch. 277, § 5, effective April 8, 2015.

Effective Date.

The 2015 amendment of this section by section 5 of chapter 277, S.L. 2015 became effective July 1, 2015.

39-31-13. Regulations furnished to holder of permit.

The department shall mail each holder of a household goods carrier permit under this chapter the rules the department adopts to implement this chapter.

Source:

S.L. 1995, ch. 386, § 1; 2015, ch. 277, § 6, effective April 8, 2015.

Effective Date.

The 2015 amendment of this section by section 6 of chapter 277, S.L. 2015 became effective July 1, 2015.

39-31-14. Insurance required of carrier — Liability of insurer.

The department, before granting a household goods carrier permit to any common motor carrier, shall require the owner or operator to procure public liability insurance. The conditions of the liability insurance must guarantee the payment of any loss or damage to property or on account of the death or injury to any person resulting from the negligence of the carrier. The carrier shall file the insurance policy with the department and the policy must be kept in full force. The carrier must provide proof the policy is in full effect annually in a form prescribed by the department. Upon failure of a carrier to maintain insurance required by this section, the department shall cancel the permit. A permit of any company authorized to write liability or property damage insurance in the state, in a form approved by the department and certifying that there is in effect a liability insurance policy required by this section, may be filed instead of the policy.

Source:

S.L. 1995, ch. 386, § 1; 2015, ch. 277, § 7, effective April 8, 2015.

Effective Date.

The 2015 amendment of this section by section 7 of chapter 277, S.L. 2015 became effective July 1, 2015.

39-31-15. Deposit of fees.

The department shall deposit monthly all fees collected under this chapter in the highway fund in the state treasury.

Source:

S.L. 1995, ch. 386, § 1.

39-31-16. Enforcement of chapter.

Any law enforcement officer may make an arrest for any violation of this chapter, and the state’s attorney of the county in which the offense was committed shall prosecute the offender. The highway patrol shall enforce this chapter in any part of the state. Upon written request of the department or the highway patrol, the attorney general shall prosecute or assist in the prosecution of any person alleged to have violated this chapter or any rule adopted to implement this chapter.

Source:

S.L. 1995, ch. 386, § 1.

39-31-17. Penalty.

Any person who willfully violates this chapter, or any order or rule issued or adopted under this chapter, is guilty of an infraction.

Source:

S.L. 1995, ch. 386, § 1.

CHAPTER 39-32 Intrastate Commercial Driver Hours of Service

39-32-01. Definition of intrastate driver.

As used in this chapter, “intrastate driver” means a driver who will be operating a commercial motor vehicle within this state for a seven-consecutive-day period.

Source:

S.L. 1997, ch. 348, § 1.

39-32-02. Intrastate exemptions from hours of service regulations.

  1. The following intrastate drivers are not subject to hours of service regulations:
    1. A driver of an authorized emergency vehicle;
    2. A driver who operates a motor vehicle in intrastate commerce if the gross vehicle weight, gross vehicle weight rating, gross combination weight, and gross combination weight rating are less than twenty-six thousand one pounds [11793.86 kilograms] unless the vehicle is used to transport hazardous materials requiring a placard, the vehicle is designed to transport more than eight passengers, including the driver, for compensation, or the vehicle is designed or used to transport sixteen or more people, including the driver not for compensation; or
    3. A driver of a tow truck operating at the request of a law enforcement officer.
  2. Except for a driver included in subsection 1, a motor carrier may not permit or require any intrastate driver to drive and an intrastate driver may not drive:
    1. More than twelve cumulative hours following ten consecutive hours off duty;
    2. For any period after the end of the sixteenth hour after coming on duty following ten consecutive hours off duty; or
    3. After having been on duty for seventy hours in any period of seven consecutive days.
  3. Hours of service limitations do not apply to an intrastate driver operating a commercial vehicle to provide emergency relief during an emergency declared by the governor. Under this subsection, an emergency is the result of any natural activities, including a tornado, windstorm, thunderstorm, snowstorm, ice storm, blizzard, drought, mudslide, flood, high water, earthquake, forest fire, explosion, blackout, or other occurrence, natural or manmade, which interrupts delivery of essential services, such as electricity, medical care, sewer, water, telecommunications transmissions, or essential supplies, such as food and fuels, or otherwise threatens human life or public welfare.
  4. Hours of service limitations do not apply to an intrastate driver transporting agricultural commodities or farm supplies, including farm equipment or machinery, for agricultural purposes in this state during planting and harvesting seasons from January first through December thirty-first, if the transportation is limited to an area within a one hundred fifty air-mile radius from the source of the commodities or the distribution point for the farm supplies.
  5. An intrastate driver is exempt from maintaining a record of duty status if:
    1. The driver operates within a one hundred fifty air-mile radius from the driver’s normal work-reporting location or from the official worksite of the vehicle;
    2. At least ten consecutive hours off duty separate each twelve hours on duty;
    3. The driver, except for a driver salesperson, returns to the work-reporting location and is released from work within twelve consecutive hours; and
    4. The motor carrier maintains and retains for a period of six months accurate time records showing the time the driver reports for duty and is released from duty each day.

Source:

S.L. 1997, ch. 348, § 2; 1999, ch. 362, § 1; 2001, ch. 354, § 1; 2011, ch. 275, § 2; 2021, ch. 280, § 6, effective August 1, 2021.

CHAPTER 39-33 Driver and Motor Vehicle Record Privacy

39-33-01. Definitions.

As used in this chapter:

  1. “Department” means the department of transportation or an authorized agent or contractor of the department responsible for compiling and maintaining motor vehicle records.
  2. “Disclose” means to engage in any practice or conduct to make available and make known personal information contained in a motor vehicle record about a person to any other person by any means of communication.
  3. “Express consent” means consent in writing, including consent conveyed electronically which bears an electronic signature as defined by law.
  4. “Highly restricted personal information” means an individual’s photograph or image, social security number, and medical or disability information.
  5. “Individual record” means a motor vehicle record containing personal information about a designated person who is the subject of the record as identified in a request.
  6. “Motor vehicle record” means any record that pertains to a motor vehicle operator’s license or permit, motor vehicle registration, motor vehicle title, or identification document issued by the department, or other state or local agency authorized to issue any of such forms of credentials. A record includes all books, papers, photographs, photostats, cards, films, tapes, recordings, electronic data, printouts, or other documentary materials regardless of physical form or characteristics.
  7. “Person” does not include an agency of this state.
  8. “Personal information” means information that identifies a person, including an individual’s photograph or computerized image, social security number, driver identification number, name, address, telephone number, and medical or disability information. The term does not include the five-digit zip code of an address, information on vehicular accidents, driving or equipment-related violations, and operator’s license or registration status.

Source:

S.L. 1997, ch. 349, § 1; 2001, ch. 355, § 1.

Note.

Section 12 of chapter 349, S.L. 1997 provides:

EXPIRATION DATE. This Act becomes ineffective on the date the attorney general certifies to the legislative council that the Federal Driver’s Privacy Protection Act of 1994 [Pub. L. 103-322; 108 Stat. 2099; 18 USCS 2721] has been declared unconstitutional by the United States Supreme Court or is otherwise void.”

39-33-02. Disclosure and use of personal information from department records prohibited.

  1. Notwithstanding any other provision of law, except as provided in sections 39-33-03, 39-33-04, and 39-33-05, the department may not knowingly disclose personal information about any person obtained by the department in connection with a motor vehicle record.
  2. Notwithstanding any other provision of law, except as provided in subsections 1, 4, 6, and 9 of section 39-33-05, the department may not knowingly disclose highly restricted personal information about any person without the express consent of the person to whom such information pertains. This does not in any way affect the use of organ donation information on an individual’s operator’s license or affect the administration of organ donation initiatives in the state.

Source:

S.L. 1997, ch. 349, § 2; 2001, ch. 355, § 2.

39-33-03. Required disclosures.

Personal information referred to in section 39-33-02 must be disclosed for use in connection with matters of motor vehicle or driver safety and theft; motor vehicle emissions; motor vehicle product alterations, recalls, or advisories; performance monitoring of motor vehicles and dealers by motor vehicle manufacturers; and removal of nonowner records from the original owner records of motor vehicle manufacturers in accordance with federal law.

Source:

S.L. 1997, ch. 349, § 3.

39-33-04. Disclosure with consent.

Personal information referred to in section 39-33-02 may be disclosed to any requester, if the requester demonstrates in the form and manner prescribed by the department that the requester has obtained the written consent of the person who is the subject of the information.

Source:

S.L. 1997, ch. 349, § 4.

39-33-05. Permitted disclosures.

The department may disclose personal information referred to in section 39-33-02 to any person, on proof of the identity of the person requesting a record and representation by the requester that the use of the personal information will be strictly limited to one or more of the following:

  1. For use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person acting on behalf of a government agency in carrying out its functions.
  2. For use in connection with matters of motor vehicles or driver safety and theft; motor vehicle emissions; motor vehicle product alterations, recalls, or advisories; performance monitoring of motor vehicles, motor vehicle parts, and dealers; motor vehicle market research activities, including survey research; and removal of nonowner records from the original owner records of motor vehicle manufacturers.
  3. For use in the normal course of business by a legitimate business or its agents, employees, or contractors:
    1. To verify the accuracy of personal information submitted by the individual to the business or its agents, employees, or contractors; and
    2. If the information as so submitted is not correct or is no longer correct, to obtain the correct information, but only for the purposes of preventing fraud by, pursuing legal remedies against, or recovering on a debt or security interest against, the individual.
  4. For use in connection with any proceeding in any court or government agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of any court.
  5. For use in research activities, and for use in producing statistical reports, so long as the personal information is not published, redisclosed, or used to contact individuals.
  6. For use by any insurer or insurance support organization, or by a self-insured entity, or its agents, employees, or contractors, in connection with claims investigation activities, antifraud activities, rating, or underwriting.
  7. For use in providing notice to the owner or lienholder of a towed or impounded vehicle.
  8. For use by any licensed private investigative agency or licensed security service for any purpose permitted under this section.
  9. For use by an employer or its agent or insurer to obtain or verify information relating to a holder of a commercial driver’s license which is required under the Commercial Motor Vehicle Safety Act of 1986 [title XII of Pub. L. 99-570].
  10. For use in connection with the operation of private toll transportation facilities.
  11. For any use specifically authorized by law that is related to the operation of a motor vehicle or public safety.
  12. For any other use in response to requests for individual motor vehicle records if the department has obtained the express consent of the person to whom such personal information pertains.
  13. For bulk distribution for surveys, marketing, or solicitations if the department has obtained the express consent of the person to whom such personal information pertains.

Source:

S.L. 1997, ch. 349, § 5; 2001, ch. 355, § 3.

39-33-06. Fees.

Disclosure of personal information required or permitted under sections 39-33-03, 39-33-04, and 39-33-05 is subject to payment by the requesting person to the department of all fees for the information required by law, or the terms of any contract with the requesting person, on the terms for payment as may be required or agreed.

Source:

S.L. 1997, ch. 349, § 6.

39-33-07. Additional conditions.

Before the disclosure of personal information under sections 39-33-03, 39-33-04, and 39-33-05, the department may require reasonable assurance concerning the identity of the requesting person, the use to be only as authorized, and the consent of the person who is the subject of the information to be obtained. These conditions may include the making and filing of a written application in a form and containing information and certification requirements as the department may prescribe.

Source:

S.L. 1997, ch. 349, § 7.

39-33-08. Resale or redisclosure.

  1. An authorized recipient of personal information may resell or redisclose the information for any use permitted under section 39-33-05.
  2. The department shall require any authorized recipient who resells or rediscloses personal information to maintain for a period of not less than five years records as to the person receiving the information and the permitted use for which it was obtained and to make these records available for inspection by the department upon request.

Source:

S.L. 1997, ch. 349, § 8.

39-33-09. Regulations and waiver procedure.

Upon receiving a request for personal information that is not subject to disclosure in accordance with the exception provisions of sections 39-33-03, 39-33-04, and 39-33-05, the department may mail a copy of the request to each individual who is the subject of the information, informing the individual of the request, together with a statement to the effect that disclosure is prohibited and will not be made unless the individual affirmatively elects to waive the individual’s rights to privacy under this chapter.

Source:

S.L. 1997, ch. 349, § 9.

39-33-10. Penalty for false representation.

Any person requesting the disclosure of personal information from department records who misrepresents that person’s identity or makes a false statement to the department on any application required to be submitted pursuant to this chapter is guilty of a class A misdemeanor.

Source:

S.L. 1997, ch. 349, § 10.

CHAPTER 39-34 Transportation Company Networks

39-34-01. Agent.

The transportation network company must maintain a registered agent with the secretary of state for service of process in this state.

History. S.L. 2015, ch. 223, § 2, effective April 22, 2015.

Effective Date.

This chapter became effective April 22, 2015, pursuant to an emergency clause in section 3 of chapter 223, S.L. 2015.

39-34-02. Fare charged for services.

The transportation network company shall provide passengers with the applicable rates being charged and the option to receive an estimated fare before the passenger enters the transportation network company driver’s vehicle.

History. S.L. 2015, ch. 223, § 2, effective April 22, 2015.

39-34-03. Transportation driver requirements.

  1. Before permitting an individual to act as a transportation network company driver on its digital platform, the transportation network company shall:
    1. Require the individual to submit an application to the transportation network company, which includes information regarding the individual’s address, age, driver’s license, driving history, motor vehicle registration, automobile liability insurance, and other information required by the transportation network company;
    2. Conduct, or have a third party conduct, a local and national criminal background check for each applicant that must include:
      1. Multistate and multijurisdiction criminal records locator or other similar commercial nationwide database with validation; and
      2. National sex offender registry database; and
    3. Obtain and review a driving history research report for the individual.
  2. The transportation network company may not permit an individual to act as a transportation network company driver on its digital platform who:
    1. Has had more than three moving violations in the prior three-year period, or one major violation in the prior three-year period, including attempting to evade the police, reckless driving, or driving on a suspended or revoked license;
    2. Has been convicted, within the past seven years, of driving under the influence of drugs or alcohol, fraud, a sexual offense, use of a motor vehicle to commit a felony, a crime involving property damage, theft, an act of violence, or an act of terror;
    3. Is a match in the national sex offender registry database;
    4. Does not possess a valid driver’s license;
    5. Does not possess proof of registration for the motor vehicle used to provide transportation network company services;
    6. Does not possess proof of automobile liability insurance for the motor vehicle used to provide transportation network company services; or
    7. Is not at least twenty-one years of age.

History. S.L. 2015, ch. 223, § 2, effective April 22, 2015.

39-34-04. Personally identifiable information.

A transportation network company may not disclose any personally identifiable information of a transportation network company passenger, except pursuant to the publicly disclosed terms of the transportation network company’s privacy policy. For any other disclosure not governed by the privacy policy, the transportation network company must obtain the passenger’s consent before the company may disclose the passenger’s personally identifiable information.

History. S.L. 2015, ch. 223, § 2, effective April 22, 2015.

39-34-05. Transportation network company reporting requirements — Legislative management report — Penalty. [Repealed]

History. S.L. 2015, ch. 223, § 2, effective April 22, 2015; repealed by 2021, ch. 301, § 1, effective August 1, 2021.

39-34-06. Controlling authority.

  1. Notwithstanding any other provision of law, transportation network companies and transportation network company drivers are governed exclusively by this chapter, chapter 26.1-40.1, and any rules adopted consistent with this chapter and adopted by the insurance commissioner under chapter 26.1-40.1.
  2. A political subdivision may not impose a tax on, or require a license for, a transportation network company or a transportation network company driver or subject a transportation network company to the political subdivision’s rate, entry, operational, or other requirements.
  3. This chapter may not be construed to limit the ability of a commercial service airport or the governing body of a commercial service airport to enter an operating agreement with a transportation network company which authorizes operational access to the commercial service airport. An operating agreement entered under this subsection may provide guidelines for entry, pick-up, drop-off, fees, and other airport operational procedures required by the commercial service airport for the transportation network company to be allowed operational access to the commercial service airport. As used in this subsection, “commercial service airport” means a public airport that has at least two thousand five hundred passenger boardings per calendar year and receives scheduled passenger aircraft service.

History. S.L. 2015, ch. 223, § 2, effective April 22, 2015; 2017, ch. 276, § 1, effective August 1, 2017; 2021, ch. 302, § 1, effective August 1, 2021.