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The only law firm in North Dakota to win DUI cases at both the U.S. Supreme Court and the North Dakota Supreme Court.
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Today, in Morel v. State, the North Dakota Supreme Court ruled that Birchfield v. North Dakota announced a new substantive rule of federal constitutional law and therefore it must be given retroactive effect. Herbel Law Firm handled both of these cases. In Birchfield, the United States Supreme Court ruled that a driver may not be convicted of a crime for refusing a warrantless request for a blood test. A driver has a Fourth Amendment right to refuse a blood test, in the absence of a search warrant. For those folks whose convictions for refusing a blood test became final before the Birchfield rule was announced, you now have a remedy.
Last week, the Minnesota Supreme Court ruled that the Fifth Amendment privilege against self-incrimination does not protect a person from being ordered to provide a fingerprint to unlock a seized cellphone. The Court decided that providing a fingerprint to unlock a cellphone is not a testimonial communication which would be protected under the Fifth Amendment.
Today, the North Dakota Supreme Court ruled that a person can be convicted of actual physical control (APC), a non-driving form of DUI, even if the person is in his own driveway, the vehicle is not running, and there is no evidence of driving before the arrest for APC. The Court seemed to believe that the homeowner should post his residential property with "keep out" and "no trespassing" signs in order to shield himself from prosecution for APC. Wow. This is exactly opposite of what the Nebraska Supreme Court held, with similar facts and identical statutes.
Today, in State v. Helm, the North Dakota Supreme Court ruled that the government cannot criminalize a driver's refusal of a urine test as a search incident to arrest for DUI, if the government does not have a search warrant. Last summer, in Birchfield v. North Dakota, the United States Supreme Court ruled that Mr. Birchfield could not be convicted of a crime for refusing a blood test, because the arresting officer did not have a search warrant to extract blood. The Birchfield court did not address the warrantless refusal of urine tests. This week's ruling was a big decision in the Fourth Amendment arena, and it will be cited by Supreme Courts across this country as this issue works its way up to the U.S. Supreme Court.
A defendant has a right to a "public" trial in "open" court. A Defendant will almost always receive a new trial if he is convicted after the Court closes trial to the public. Recently, however, the United States Supreme Court stated that if the Defendant fails to object to the closure and fails to raise the claim on direct appeal, he will have the onerous task of showing he was prejudiced by the closure when he later claims to have had ineffective assistance of counsel. In Weaver v. Massachusetts, a 16-year-old murder defendant was denied relief under those very circumstances.
The North Dakota House in now considering a Senate bill that would repeal the prohibition on government parking meters; i.e., every level of North Dakota government is going to charge you to park now. Gotta quarter? Despite all the oil in this State and all that money locked away in a rainy-day fund, times are tough in North Dakota. Tighten your belt and get your change ready.
The North Dakota legislature is setting aside $25,000 to study the initiated and referred measure processes. It appears North Dakota government wants to "study" how it can take away power from the people of North Dakota to shape laws. All North Dakota citizens should be concerned about this.
In response to the DAPL (Dakota Access Pipeline) protests, the State of North Dakota is proposing to make it a crime for a person "to wear a mask, hood, or other device that covers, hides, or conceals any portion of that individual's face" if they are hiding their face and they have a prior criminal conviction. With the passage of this poorly-crafted bill, a person with a prior criminal record is subject to arrest for wearing a scarf in sub-zero weather.
The State of North Dakota is trying to reconcile current victim's law with the controversial Marsy's Law. The proposed legislation would allow an alleged victim, or a family member of the alleged victim, to "prevent disclosure of confidential or privileged information about the victim or the victim's family," without really defining what that includes. Presumably, an alleged victim could claim confidentiality or privilege to any part of the criminal justice process. This vague modification of the law carries with it the very dangerous possibility of violating due process and the Sixth Amendment.
The North Dakota Department of Transportation has asked the North Dakota legislature to grant the agency the power to hold driver's license hearings over the telephone. In a shocking request, the NDDOT has asked that due process be dumbed down and that the hearing officer decide whether a driver is entitled to a face-to-face hearing to contest a suspension or revocation of driving privileges.