State v. Nice, 924 N.W.2d 102

On April 25, 2018, Jasmine Nice was stopped for driving without tail lights; she admitted prior marijuana use and submitted to field sobriety tests and a preliminary breath test.
The deputy read Nice an implied-consent advisory stating the chemical test would be urine and included criminal penalties for refusal; she initially consented but was later arrested for DUI and then declined to provide a sample before a warrant was obtained.
Officers transported Nice to jail, the deputy obtained a search warrant for a urine test, read the implied-consent advisory again (from the warrant), and Nice refused to provide a urine sample after the warrant was secured.
The State charged Nice with driving under the influence–refusal–first offense (class B misdemeanor) for refusing to comply with the warrant-authorized urine test.
Nice moved to dismiss, arguing (1) N.D.C.C. § 39-08-01(1)(e) is unconstitutional (facial challenge), (2) repeated readings of the implied-consent advisory violated due process by misleading her about the right to refuse a warrantless test, and (3) the refusal charge should be dismissed because the State did not execute the warrant to obtain a sample; the district court denied the motion and Nice entered a conditional guilty plea.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Constitutionality of § 39-08-01(1)(e) (facial)	State: charge was for refusal after warrant; statute applies and is not vulnerable to a facial challenge here	Nice: statute misleading post-Birchfield/Helm; facially unconstitutional because urine refusal differs from breath refusal	Court: Nice may not mount a facial challenge because she was charged only after a warrant was obtained; challenge fails
Multiple recitations of implied-consent advisory (due process)	State: multiple readings do not by themselves show involuntariness or confusion	Nice: repeated advisories misled her about right to refuse warrantless urine test and impaired informed choice	Court: multiple recitations alone insufficient; Nice presented no evidence of confusion; due process claim fails
Refusal charge dismissal for failure to execute warrant	State: not squarely briefed by Nice; statutory framework does not require execution here	Nice: charge should be dismissed because the State never obtained a urine sample after the warrant	Court: issue inadequately briefed; court declines to address and does not dismiss charge
Standard of review for preliminary findings	State: district findings supported by record	Nice: factual and legal errors in lower court ruling	Court: applies settled standard—will not reverse preliminary findings if competent evidence supports them; affirms judgment

Birchfield v. North Dakota, 136 S. Ct. 2160 (U.S. 2016) (distinguishes breath from nonconsensual blood testing under Fourth Amendment)
State v. Helm, 2017 ND 207, 901 N.W.2d 57 (N.D. 2017) (treats warrantless urine like warrantless blood for DUI purposes)
State v. Krueger, 2018 ND 108, 910 N.W.2d 850 (N.D. 2018) (multiple recitations of advisory alone insufficient to show involuntary consent)
State v. Dvorak, 2000 ND 6, 604 N.W.2d 445 (N.D. 2000) (generally, parties may only challenge statutes as applied to them)