Legislative Update

So, what changes were wrought to the criminal justice process this past biennium by our politicos down in Bismarck?

Pat Merriman

By Pat Merriman

Dunn Co. State’s Attorney

Here is a summary of the changes crafted by the 64th Legislative Assembly. First, driving: CDL drivers may now use out-of-state skill testing scores here in ND. In addition, private drivers ed courses may used in lieu of the state skills test. Second, drug offenses were gutted in the wake of the nation-wide push to legalize or de-criminalize non-violent offenses. Regardless as to the severity of a drug offense, there are no mandatory minimums for any drug offense anymore. More studies on prison reform and drug treatment. Marijuana possession penalties reduced by 92% in most cases. Now, possession of 1 ounce or less is also only a B misdemeanor (used to be 1/2 oz.). Personal use of ALL paraphernalia to ingest any controlled substance except marijuana is now a class A misdemeanor (reduction in punishment= 98% from former class C felony). Possession of drug paraphernalia to personally ingest marijuana is now only a class B misdemeanor (reduction in potential punishment of 92%). Immunity is now granted to “Good Samaritans” (from prosecution for ingesting illegal drugs) for calling in a drug overdose.

Third, DUI’s. Uber-cab legislation, i.e., private citizens with a cell phone app can get a ride home but, only IF the driver has a commercial liability insurance policy. A response to local, “professional” cab drivers who claimed lost revenue. Alcohol sales are now authorized at 11 AM instead of Noon. Powdered alcohol is now illegal for minors to possess/consume. Even though DUI fatalities dropped by 40 last year (after tougher restrictions on DUI refusals), the ND Senate decided to throw these offenders a new bone anyway by allowing them to “cure” a roadside refusal by agreeing to take the BAC test later at the jail. Also, now, imposes a 5-year look back period for felony DUI’s in ND as opposed to the old enhancement provisions which contained a 7-year look -back.

Fourth, Guns. You can now OPENLY carry a gun into a place where alcohol is located as long as no one is actually drinking on the premises. Open carry in a state or public building is still illegal, although, this statute does NOT prohibit the carrying of a weapon on state “lands”. Suppressors and short-barreled rifles are allowed for hunting so long as the silencer/weapon is lawfully possessed AND the shooter has a valid hunting license. “Dangerous weapon” now does not mean a simple stun gun but, does include a Taser which “uses a projectile and may be used to apply multiple applications of voltage during a single incident”. Still prohibited is possessing a firearm or dangerous weapon at a public gathering including athletic or sporting events, a school, a church, and a publicly owned or operated building (except a public rest area or restroom). Carrying a loaded firearm in a vehicle is still prohibited including, now, an off-highway vehicle and snowmobiles. Concealed weapons are still prohibited unless the possessor has a concealed-carry permit. Magazine-fed weapons are not “loaded” unless a bullet is actually chambered. In addition, guns are allowed in vehicles on college campuses and, businesses may NOT restrict firearms in their parking lots either. Law enforcement is now required to auction off, rather than destroy, confiscated weapons. And, ND authorities must complete any NFA background check on CCW permitees within 30 days.

Fifth, in the state’s $14.4 billion budget, the Highway Patrol Academy’s $27 million expansion project (sorely needed) was completely axed. Outdated facility and needs to be upgraded. Only $10 million will be distributed, by grant, to “oil impacted” counties for law enforcement. Sixth, the North Dakota prison system currently holds 1,700 inmates and, the legislature vowed that it will NOT build or expand any NDDOCR facility, instead, leaving local/regional jails to deal with the soaring crime problem. Judicial districts may now create a “veterans’ court” system. Felony penalties now for illegal dumping of oilfield waste. Seventh, mental health issues. Nurses can now sign off on mental health/drug commitments. The shortage of doctors has mandated this process, although, at least one local hospital will no longer agree to the process and, instead, demands a judicial order in violation of the statute on emergency commitments.

Eighth, the ITD Radio Communication System. Currently, law enforcement radios will be completely obsolete within 28 months for failing to modernize. They operate state-wide on isolated, local systems which do not necessarily communicate with each other. A state-wide, already available, state radio 21st Century “trunk” system (for mutual aid) comes with a $160 million price tag to add these smaller jurisdictions. Law enforcement had requested that the Legislature fund the trunk system while the locals paid for the actual radios. Instead, the Legislature appropriated $1.5 million to continue to “study” the issue. Another “compromise” bill allows State Radio to operate in jurisdictions of less than 25,000 inhabitants OR when a local radio system goes down. A controversial turf struggle exists now between some small communities and that state system.

Ninth, the state has 4 new district judges (including one in our District) to deal with the crushing case load. Tenth, Juvenile & Sex Crime Issues. Abuse vs neglect are now two separate issues with 2 separate NDCC sections. Human Trafficking is now a crime and is also defined as deprivation or abuse if a child is involved. Juveniles who commit drug offenses (possession, manufacture or sale) are not automatically transferred to adult court anymore. Minors can be in bar restaurants if there is a guardian present and it is not later than 10:00 pm. Homeless sex offenders have to come in every 3 days and let local LE know they are in town. New Human Trafficking statute applies the same criminal penalties to sex or work trafficking. Grants immunity to victims who participate in these rings. Increases the offense level for Prostitution. It is now an A felony to produce child pornography. Increases the statute of limitations on a sex abuse of a child to 10 years. Eleventh, law enforcement body-cams are NOT subject to Open Records requirements.

Twelfth, Sentencing/Probation/Parole. Felony probation is preferred on drug cases but, does not automatically mandate “supervised” probation anymore. Some violent felonies still require supervised probation. Courts can also revoke and reinstate probation as many times as they want. Terms of supervised probation are reduced for most crimes, particularly, class B misdemeanors which cannot, now, exceed, 360 days. Victims of property crime now have a problem as law enforcement will need a court order to return any item of their property which is not defined as a “consumer good” or which does not have a title. Early release now from probation for any DUI offender who “successfully completes” treatment as determined solely by DOCR. Changes mandatory minimum sentences for armed offenders to mean only those offenses where “the offender inflicts or attempts to inflict bodily injury upon another, threatens or menaces another with imminent bodily injury with a dangerous weapon, explosive, destructive device, or firearm; or the offender possesses or has within immediate reach and control a dangerous weapon, explosive, destructive device, or firearm while in the course of committing any felony offense…except for the simple possession of marijuana.” An offender serving a mandatory sentence may still be eligible to participate in a release program during the last six months of his/her sentence.

Finally, miscellaneous enactments. Allows most government agencies to do background checks on both volunteers and employees now. Filing invalid liens on government officials (Posse Comitatus, Sovereign Citizen, etc.) is now a class C felony. Stalking & Harassment now includes GPS technology. Law enforcement can use drones but, need judicial approval just like a search warrant. There are exceptions to the search warrant requirement, i.e., exigent circumstances like a missing child or escaped convict. Can’t use drones to interfere with hunting privileges. Game & Fish can authorize property owners to de-populate destructive game which is harming crops, etc. US Border Patrol now has arrest power in ND. Modified motor vehicle offenses are now moving violations not infractions. Operation of such a vehicle (including juveniles) would be cited into Traffic Court not District Court. Contractor fraud is now an A Misdemeanor (C felony if no work done). Aggravated Assault is now not subject to the “must serve” 85% rule. Unless the victim is aged 12 or less. DOCR can kick them loose at their discretion now. Law enforcement may now impound vehicles if they are blocking traffic. The city council/ board of city commissioners shall have power to establish administrative boards or committees with the authority to impose administrative fines or other non-criminal penalties, including orders of suspension or revocation for offenses committed within their boundaries. And, that’s all I’ve got to say about that.

Share this post