The 0.041 Stop: Underage Tolerance, Impairment, and a Refused Breath Test
At 0142 hours on a Saturday, you stop a 2009 sedan on a Dickinson city street after watching it do 45 mph in a posted 25 and drift across the center line twice. The driver is 19, licensed, and alone. He has bloodshot, watery eyes, slurred speech, and fumbles his wallet; he admits to drinking "a couple of beers" at a friend's house an hour ago. A half-empty beer can sits in the center console and the smell of alcohol fills the car. On a level, well-lit surface you count 4 of 6 clues on the HGN, 5 of 8 on the walk-and-turn, and 3 of 4 on the one-leg stand. The preliminary breath test reads 0.041. You arrest him and read the implied consent advisory at the station. He refuses to sign, says, "I want a lawyer, I'm not blowing," and will not provide a sample. He has no prior arrests, no injuries, and is polite but quiet.
1. Identify every offense these facts support and explain the legal theory behind each, including why a 0.041 matters even though it is below 0.08.
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DUI, impaired driving (NDCC 39-08-01). The per se theory (0.08 or more) is unavailable at 0.041, but the statute separately prohibits driving while under the influence. Impairment is proven by the totality: 45 in a 25, two center-line crossings, bloodshot/watery eyes, slurred speech, fumbling, the admission, the open container, and the SFST clues. Note the validated thresholds: 4 or more HGN clues, 2 or more walk-and-turn clues, 2 or more one-leg-stand clues. He exceeds all three, so the tests corroborate impairment rather than merely describe it.
Under-21 zero tolerance. A driver under 21 with a BAC of 0.02 or more commits a violation without any proof of impairment. The 0.041 satisfies this element on its own, and this charge is the one least vulnerable to a defense attack on the SFSTs.
Open container. The beer can in the console supports the separate container violation.
Do not overstate the PBT. A preliminary breath test is a screening tool that supports probable cause. It is not the evidentiary test and does not by itself prove the per se element. Charging the per se theory on a PBT alone gives the defense an easy win; charge impairment plus zero tolerance and let the evidentiary sample (or the refusal) do the rest of the work.
2. The driver refuses the evidentiary breath test. Explain what you may do, what you may not do, and what consequences follow from the refusal.
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What you may do. Read the advisory verbatim, note the time, and give him a reasonable opportunity to consult an attorney by phone. He has no right to have counsel present during the test and no right to delay indefinitely; document the time you allowed and his responses.
Under Birchfield v. North Dakota (2016), a breath test is a search incident to a lawful arrest that may be administered without a warrant, and refusing it can carry criminal consequences. A blood test is different: without consent or exigency, you need a warrant. So the cleanest path is a telephonic search warrant for a blood draw, executed by a qualified phlebotomist. Never hold him down for a breath sample and never tell him the refusal itself is a crime unless the current statute and the prosecutor's guidance support that for the specific test requested.
Administrative consequences run in parallel. Report the refusal to the driver's licensing authority as required; the implied-consent revocation process proceeds regardless of the criminal outcome.
Document, do not argue. Record the exact words of refusal, the advisory read, the time, the witnesses, and the warrant application and result. Whether the refusal is admissible at trial is the prosecutor's call, not yours. Saying "he refused because he knew he was drunk" in your report injects an inference where the facts should speak.
3. List the specific facts your report must contain so that both the impairment and the refusal survive a suppression hearing and a jury.
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- Driving observations before the stop: speed, distance watched, exact center-line crossings, time, location, weather and road surface.
- Personal indicators in observable terms: what "slurred" sounded like, what he fumbled, whether he swayed, where the odor came from.
- SFST conditions: level, well-lit, dry surface; his footwear; any medical or vision issues he disclosed; the exact clue counts and which clues.
- Verbatim statements: the admission, the refusal, and any request for a lawyer, in quotes, with times.
- PBT: time, instrument serial number, operator, result, and that it was used for probable cause only.
- Implied consent: time the advisory was read, who witnessed it, the time allowed for counsel, and his response.
- Warrant: when requested, who reviewed it, the result, and the chain of custody for any sample.
- Body camera and audio: note activation and any gaps.
The reasoning is simple: a suppression hearing is won or lost on whether the report lets a judge reconstruct the stop minute by minute. Vague entries like "signs of impairment observed" give the defense nothing to attack and the State nothing to rely on.