Last verified: May 2026
The Statutory Framework
N.D.C.C. § 39-08-01 prohibits driving (or being in actual physical control of a vehicle) "under the influence of any drug or substance or combination of drugs or substances to a degree which renders that person incapable of safely driving."
No Per Se THC Limit
Unlike Colorado (5 ng/mL), Washington (5 ng/mL), Pennsylvania (1 ng/mL), or Ohio (2 ng/mL whole blood), North Dakota does not have a per se nanogram threshold for THC. Cannabis-impaired DUI is proven by the totality of the evidence: officer observations, field sobriety performance, drug recognition expert (DRE) evaluation, and confirmatory blood or urine testing.
Birchfield v. North Dakota, 579 U.S. 438 (2016)
This North Dakota case decided alongside Bernard v. Minnesota requires police to obtain a search warrant before a non-consensual blood draw; warrantless breath tests remain permissible as a search incident to arrest. Pre-Birchfield criminal-refusal statute for blood was held unconstitutional as applied. As a result:
- Refusing a warrantless breath test can still be prosecuted.
- Refusing a blood test without a warrant cannot be criminalized.
- Administrative license suspensions for refusal remain in force (180 days 1st / 2 yrs 2nd / 3 yrs 3rd).
| Offense (within 7 years) | Class | Minimum |
|---|---|---|
| 1st DUI | Class B misdemeanor | $250 fine |
| 2nd DUI | Class B misdemeanor | 5 days jail (or 30 days community service) + $500 |
| 3rd DUI | Class A misdemeanor | 60 days jail (48 hrs consecutive) + $1,000 |
| 4th DUI | Class C felony | 1 year + $2,000 |
| 5th+ DUI | Class C felony | 180 days (48 consecutive) + $1,000 |
| Minor passenger 1st DUI | Class A misdemeanor | Enhanced |
| Refusal — warrantless breath | Refusal misdemeanor | Prosecutable per Birchfield |
| Refusal — warrantless blood | Not criminalized | Per Birchfield v. North Dakota, 579 U.S. 438 (2016) |
| ALR refusal suspension | Administrative | 180 days 1st / 2 yrs 2nd / 3 yrs 3rd |
Source: N.D.C.C. § 39-08-01 + § 39-20-01 (implied consent). North Dakota has NO per se THC blood limit — cannabis DUI is impairment-based, established by officer observation, field sobriety tests, DRE evaluation, and blood/urine confirmation. Some third-party guides incorrectly cite a 5 ng/mL threshold; the statute itself contains no such language. Birchfield v. North Dakota, 579 U.S. 438 (2016) requires a search warrant before non-consensual blood draws but permits warrantless breath tests as a search incident to arrest. Patient registry status is no defense to DUI per § 19-24.1-34. CDL holders are barred entirely from the medical program under federal DOT regulations.
Patient Status Is No Defense
Per § 19-24.1-34 and § 39-08-01, a registered medical cannabis card does not immunize a patient from DUI. CDL holders are barred entirely from the medical program under federal DOT regulations.
Drug Recognition Experts
The North Dakota Highway Patrol employs Drug Recognition Experts trained in the standardized 12-step IACP DRE protocol. DRE testimony is admissible in ND courts to identify drug-induced impairment when no per-se test is dispositive. Defense bar regularly challenges DRE methodology.
Combined Alcohol and Cannabis
Subsection (1)(b)(4) explicitly addresses combined-influence prosecutions; impairment from any combination is sufficient.
Cross-Border THC-Metabolite Issue
A driver returning from Minnesota or Manitoba who consumed cannabis there several hours earlier and tests positive for THC metabolites without subjective impairment is theoretically still vulnerable in ND. Defense attorneys argue (often successfully) that a positive THC test alone is insufficient. The same stop typically generates a separate possession charge (concentrate = Class C felony at any weight).
For in-depth cannabis education, dosing guides, safety information, and research summaries, visit our partner site TryCannabis.org
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