The North Dakota Supreme Court this past week heard oral arguments from a pair of cases related to the North Dakota Legislature’s 2013 decision to criminalize refusal to submit to a chemical test in suspected drunken driving cases.

In the case of the State of North Dakota versus Danny Birchfield, Birchfield was arrested by a North Dakota Highway Patrol officer after he drove his vehicle into a ditch in Morton County.

Birchfield consented to a preliminary breath test, or PBT, which revealed he had a blood alcohol content of 0.254 percent. Birchfield then refused a chemical test, generally held to be more accurate, and was arrested for refusal to submit to a chemical test.

In North Dakota, refusal to submit to a chemical test holds the same penalty as driving under the influence, including potential jail time.

Refusing either a preliminary breath test, which is not admissible in a jury trial, or a chemical test is grounds for the charge.

The other case, the State of North Dakota versus Jayden Washburn, stemmed from an October 2013 incident where a Burleigh County Sheriff’s deputy pulled Washburn over on Interstate 94 after observing that the vehicle driven by Washburn was swerving.

The deputy subjected Washburn to several field sobriety tests and then administered a voluntary PBT, which the deputy stated gave probable cause to arrest her.

Once detained, Washburn refused a chemical test.

In both cases, the defendants stated, through their attorneys, that they had a Fourth Amendment right to refuse the chemical test.

Birchfield’s attorney, Dan Herbel, and Washburn’s attorney, Lloyd Suhr, presented different arguments and case law to the judge.

In the Birchfield case, Haskell rejected the argument. In the Washburn case, he accepted it.

On Tuesday, it was up to the Supreme Court to hear from all sides and then consider for itself.

The heart of the matter, argued at great length in both hearings, is the notion of “implied consent.”

In North Dakota, as across the United States, driving is a privilege and not a right.

The state argued that when a person applies for a driver’s license, they are effectively consenting to be subjected to a chemical test in the event that they are placed under arrest for suspicion of drunken driving.

“People voluntarily get their license. Nobody forces them to get them. Nobody forces them to get on the road. Nobody forces them to drink and drive,” argued Assistant Burleigh County State’s Attorney Britta Demello Rice.

Rice was the prosecutor in the Washburn case.

Prior to the Legislature’s 2013 act, refusal to submit to a chemical test carried only civil penalties, such as the suspension or revocation of a license.

Herbel, the Bismarck attorney who represented Birchfield, argued that he wasn’t opposed to civil repercussions to refusal to submit, but insisted that his client was punished for exercising his Fourth Amendment right to refuse an unreasonable search.

“The state of North Dakota has made it a crime to refuse a warrantless blood test, breath test and urine test,” Herbel said.

“The State of North Dakota can giveth and the State of North Dakota can taketh away. Driving is a privilege. It is not a right. You do not have to have a driver’s license. You are not entitled to a driver’s license. You are entitled to be free from unreasonable searches and seizures,” Suhr said.

Herbel and Suhr both argued that a criminal penalty for refusal to submit was, by its very nature, coercive and thus unreasonable.

Suhr added that the U.S. Supreme Court has upheld the human body is entitled to at least as much privacy as a home is, if not more, and a chemical test is invasive.

Throughout the two sets of arguments, lawyers on both sides raised the specter of the U.S. Supreme Court decision of McNeely v. Missouri.

The 2013 decision, which was rendered before North Dakota strengthened its DUI laws, involved a case where law enforcement extracted a blood sample from a Missouri man without his consent.

The Supreme Court ruled that extraction unconstitutional, an unreasonable search-and-seizure.

Suhr and Herbel argued that the McNeely decision wiped away the legal framework supporting criminal penalties for refusal to submit.

They said the State of North Dakota simply hadn’t caught up with the McNeely decision.

Rice and Morton County Assistant State’s Attorney Justin Balzer, who argued against Herbel in the Birchfield case, argued otherwise.

A person in North Dakota has the right to refuse a test, unlike in Missouri at the time, Rice said. She said nothing in the McNeely decision prevented criminal penalties for doing so.

Justices pressed Rice on that assertion, asking her whether the right to refuse was a fundamental liberty interest.

“Your right to refuse is not a liberty interest. Your right to refuse is a statutory enactment,” Rice said.

With the arguments made, it now falls to the North Dakota Supreme Court to decide whether to uphold the criminal penalties. A decision could be weeks or months in the coming.