Barrios-Flores v. Levi, 2017 ND 117

Officer stopped Ulises Barrios‑Flores for speeding in June 2015; officer observed watery, bloodshot eyes, confusion, admitted drinking "a couple of beers," and unsteady gait.
Officer read the implied‑consent advisory in English and via Spanish interpretation, then requested a preliminary on‑site breath screening; Barrios‑Flores refused.
Officer arrested Barrios‑Flores, again read the advisory, requested a warrantless post‑arrest breath test; officer deemed him to have refused the post‑arrest test (that claim was later dismissed by the hearing officer for statutory notice defects).
Administrative hearing: hearing officer found the officer had reason to believe a moving violation occurred, observed signs that the driver’s body contained alcohol, and found Barrios‑Flores refused the on‑site screening; license revocation for two years followed.
District court affirmed the Department of Transportation’s revocation; this appeal asks whether a pre‑arrest on‑site breath screening may be requested on reasonable suspicion and whether revocation for refusal comported with the Fourth Amendment and state law.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a law enforcement officer may request a warrantless pre‑arrest on‑site breath screening under N.D.C.C. § 39‑20‑14(1) on mere reasonable suspicion of DUI	Barrios‑Flores: such a test implicates Fourth Amendment protections and cannot be compelled absent probable cause or an arrest	State (Levi): § 39‑20‑14(1) permits requesting an on‑site screening when the officer has reason to believe a moving violation occurred and suspects the driver’s body contains alcohol (reasonable suspicion)	Court: § 39‑20‑14(1) is properly construed to require reasonable suspicion; a pre‑arrest on‑site breath screening based on reasonable suspicion does not violate the Fourth Amendment or N.D. Const. art. I, § 8
Whether the Department properly revoked Barrios‑Flores’ license for refusing the on‑site screening	Barrios‑Flores: refusal cannot be penalized absent a constitutional basis to demand the test	State: officer had reasonable suspicion based on speeding, appearance, admission of drinking, and unsteady gait; refusal triggers statutory revocation	Court: hearing‑officer findings supported by the record establish reasonable suspicion; revocation affirmed

Birchfield v. North Dakota, 136 S. Ct. 2160 (U.S. 2016) (breath tests permissible as a search incident to arrest but warrantless blood tests are not)
State v. Baxter, 863 N.W.2d 208 (N.D. 2015) (pre‑Birchfield N.D. decision construing § 39‑20‑14 to require reasonable suspicion for on‑site breath screenings)
Beylund v. Levi, 859 N.W.2d 403 (N.D. 2015) (North Dakota treatment of implied‑consent issues and administrative suppression questions post‑Birchfield)
Missouri v. McNeely, 133 S. Ct. 1552 (U.S. 2013) (no categorical exigency rule for warrantless nonconsensual blood draws)
Schmerber v. California, 384 U.S. 757 (U.S. 1966) (blood/breath tests are searches; exigent‑circumstances analysis)
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (U.S. 1989) (biological testing constitutes a search; special‑needs analysis for certain workplace testing)
Mackey v. Montrym, 443 U.S. 1 (U.S. 1979) (upholding summary license suspension under implied‑consent scheme)
South Dakota v. Neville, 459 U.S. 553 (U.S. 1983) (use of refusal evidence and discussion of implied consent in DUI context)
Potratz v. N.D. Dep’t of Transp., 843 N.W.2d 305 (N.D. 2014) (standard of review for administrative license suspensions)