Age 20, Breath Test 0.04, and an Open Can in the Console
At 1:10 a.m. in Grand Forks an officer stops a 20-year-old driver for a burned-out taillight. The driver, licensed three years with no prior violations, admits to 'a couple of beers' after a hockey game. Field sobriety tests show clues, and a breath test at the station reads 0.04. In the console cup holder, within easy reach of the 19-year-old front passenger, sits an open, half-full can of beer. The driver insists he is 'under the legal limit' and asks whether he can just call a friend and leave the car. Nobody is hurt, nothing is damaged, and the driver is polite and cooperative. The driver lives four miles away, and the passenger holds a valid license.
1. Is 0.04 a violation for this driver? Explain the legal reasoning he is missing.
Read the worked answer
0.04 is below the 0.08 threshold that applies to drivers 21 and older, so his reasoning sounds correct - and it is wrong for him specifically. North Dakota's zero-tolerance law sets a 0.02 limit for drivers under 21. At 0.04 he is at twice that limit.
What that means:
- The state does not have to prove he was impaired. For an under-21 driver, driving with alcohol in the system above the under-21 threshold is itself the violation.
- The field sobriety clues support a conventional DUI charge independent of the number, so even a lower reading would not end the matter.
- Being polite and cooperative is good for him, but it is not a defense and does not affect the analysis.
For a 20-year-old first offender, the practical consequences can include a license suspension, fines, and a chemical dependency evaluation, plus the immediate end of his driving privileges tonight. There is no version of this stop in which he drives himself home, and no version in which 'call a friend and leave the car' erases the reading. The car will be towed or released to a sober licensed adult.
2. The open can belongs to the passenger. Who faces exposure for it, and can the passenger drive the car home?
Read the worked answer
The open container is a separate violation from the DUI, and it reaches more than one person.
- The driver is responsible for what is in the vehicle he is operating. An open container in the passenger compartment, within reach, supports a citation for him whether or not he drank from it.
- The 19-year-old passenger is himself under 21 and in possession of alcohol, which exposes him to a minor-in-possession citation.
- The 'within easy reach' detail is the point of container laws: they target the passenger compartment, not the trunk. An unopened package locked in the trunk is a different situation from an open can between the seats.
As for letting the passenger drive: no. He is 19, he has been drinking, and zero tolerance applies to him just as it does to the driver. Handing him the keys converts one problem into two. The right answer is a sober adult, a licensed ride service, or a tow - and the officer will likely arrange the tow when no sober licensed driver is available.
3. The driver asks what happens if he refuses the evidentiary chemical test. What changes, and what does not?
Read the worked answer
Refusing does not make the problem go away; it usually makes it worse.
What changes:
- North Dakota's implied consent law means that by driving on its roads he has already agreed to submit to a chemical test when an officer has grounds to request one. Refusal is a separate administrative violation: it triggers a license suspension through the licensing agency even if the criminal case is never proven, and it typically adds an ignition interlock or formal reinstatement process before full privileges return.
- The refusal can be used against him. Prosecutors can tell the jury he refused, and the officer can describe it.
What does not change:
- The field sobriety clues, the admission of drinking, the open container, and the officer's observations all remain as evidence.
- The 0.04 reading already obtained, and the under-21 threshold, still stand on their own.
So the real choice is between a bad night and a considerably worse one. Once arrested, the better course is to take the test and let a lawyer challenge the stop, the administration, or the reliability of the result later. Cooperating does not guarantee a good outcome; refusing stacks a suspension on top of whatever the criminal case produces.