# Title 20.1 — Game, Fish, Predators, and Boating

## Chapter 20.1-13.1 — Intoxication Testing of Boat Operators

### § 20.1-13.1-01. Implied consent to determine alcohol concentration and presence of

drugs.
Any individual who operates a motorboat or vessel in this state is deemed to have given
consent, and shall consent, subject to this chapter, to a chemical test, or tests, of the blood,
breath, or urine for the purpose of determining the alcohol concentration or presence of other
drugs, or combination thereof, in the individual's blood, breath, or urine. As used in this chapter,
"operates" means to be in motion, en route, but not at anchor or aground; "vessel" means any
watercraft used or designed to be used for navigation on the water such as a boat operated by
machinery, either permanently or temporarily affixed, a sailboat other than a sailboard, an
inflatable manually propelled boat, a canoe, kayak, or rowboat, but does not include an inner
tube, air mattress, or other water toy; "drug" means any drug or substance or combination of
drugs or substances which renders an individual incapable of safely operating a motorboat or
vessel; and "chemical test" means any test or tests to determine the alcohol concentration or
presence of other drugs, or combination thereof, in the individual's blood, breath, or urine,
approved by the director of the state crime laboratory or the director's designee under this
chapter. The chemical test must be administered at the direction of a game warden or a law
enforcement officer only after placing the individual, except individuals mentioned in section
20.1-13.1-04, under arrest and informing that individual that the individual is or will be charged
with the offense of operating a motorboat or vessel while under the influence of intoxicating
liquor, drugs, or a combination thereof. For the purposes of this chapter, the taking into custody
of a minor under section 27-20.4-05 satisfies the requirement of an arrest. The game warden or
law enforcement officer shall also inform the individual charged that refusal of the individual to
submit to the chemical test determined appropriate will result in that individual being prohibited
from operating a motorboat or vessel for up to three years. The game warden or law
enforcement officer shall determine the chemical test to be used. When a minor is taken into
custody for violating section 20.1-13-07, the game warden or law enforcement officer shall
diligently attempt to contact the minor's parent or legal guardian to explain the cause for the
custody and the implied consent chemical testing requirements. Neither the game warden or
law enforcement officer's efforts to contact, nor any consultation with, a parent or legal guardian
may be permitted to interfere with the administration of chemical testing requirements under this
chapter.
### § 20.1-13.1-02. Chemical test of operator in serious bodily injury or fatal accident.

Notwithstanding section 20.1-13.1-01 or 20.1-13.1-06, when the operator of a motorboat or
vessel is involved in an accident resulting in the death or serious bodily injury, as defined in
section 12.1-01-04, of another person, and there is probable cause to believe that the operator
is in violation of section 20.1-13-07, the operator may be compelled by a game warden or a
police officer to submit to a chemical test.
### § 20.1-13.1-03. Individuals qualified to administer chemical test and opportunity for

additional test.
Only an individual medically qualified to draw blood, acting at the request of a game warden
or a law enforcement officer, may withdraw blood for the purpose of determining the alcohol
concentration or presence of other drugs, or combination thereof, in the individual's blood. The
director of the state crime laboratory or the director's designee shall determine the qualifications
or credentials for being medically qualified to draw blood and shall issue a list of approved
designations, including medical doctor and registered nurse. This limitation does not apply to
the taking of a breath or urine specimen. The director of the state crime laboratory, or the
director's designee, shall electronically post a copy of the certified list of approved designations,
including medical doctor and registered nurse, with the state crime laboratory division of the
attorney general at the attorney general website and shall make the certified records required by
this section available for download in a printable format on the attorney general website. The

individual tested may have an individual of that individual's own choosing, who is medically
qualified to draw blood, administer a chemical test in addition to any administered at the
direction of a game warden or a law enforcement officer with all costs of the additional chemical
test to be the responsibility of the individual charged. The failure or inability to obtain an
additional chemical test by an individual does not preclude the admission of the chemical test
taken at the direction of a game warden or a law enforcement officer. Upon the request of the
individual who is tested, a copy of the operational checklist and test record of a breath sample
test or analytical report of a blood or urine sample test taken at the direction of the game warden
or law enforcement officer must be made available to that individual by the department or law
enforcement agency that administered the chemical test.
### § 20.1-13.1-04. Consent of person incapable of refusal not withdrawn.

Any person who is dead, unconscious, or otherwise in a condition rendering that person
incapable of refusal is deemed not to have withdrawn the consent provided by section
### § 20.1-13.1-05. Action following chemical test result for a motorboat or vessel operator.

If a person submits to a chemical test under section 20.1-13.1-01, 20.1-13.1-03, or
thereof concentration of at least ten one-hundredths of one percent by weight at the time of the
performance of the test within two hours after the operating of a motorboat or vessel, the
following procedures apply:
1. The game warden or law enforcement officer shall immediately issue a statement of
intent to prohibit the person from operating a motorboat or vessel. The issuance of a
statement of intent to prohibit the person from operating a motorboat or vessel serves
as the director's official notification to the person of the director's intent to prohibit the
person from operating a motorboat or vessel in this state.
2. If a chemical test administered under section 20.1-13.1-01 or 20.1-13.1-04 was by
urine sample or by drawing blood as provided in section 20.1-13.1-03 and the
individual tested does not reside in an area in which the game warden or law
enforcement officer has jurisdiction, the game warden or law enforcement officer shall,
on receiving the analysis of the urine or blood from the director of the state crime
laboratory or the director's designee and if the analysis shows that individual had an
alcohol, other drug, or a combination thereof concentration of at least ten
one-hundredths of one percent by weight, either proceed in accordance with
subsection 1 during that individual's reappearance within the game warden's or
officer's jurisdiction or notify a game warden or law enforcement agency having
jurisdiction where the individual resides. On that notification, that game warden or law
enforcement agency shall immediately issue a statement of intent to prohibit the
individual from operating a motorboat or vessel. The issuance of a statement of intent
to prohibit the individual from operating a motorboat or vessel serves as the director's
official notification to the individual of the director's intent to prohibit the individual from
operating a motorboat or vessel in this state.
3. The game warden or law enforcement officer, within five days of issuing the statement
of intent, shall forward to the director a certified written report in the form required by
the director. If the statement was given because of the results of a chemical test, the
report must show that the game warden or officer had probable cause to believe the
individual had been operating a motorboat or vessel while in violation of section
20.1-13-07, that the individual was lawfully arrested, that the individual was chemically
tested under this chapter, and that the results of the test show that the individual had
an alcohol, other drug, or a combination thereof concentration of at least ten
one-hundredths of one percent by weight. In addition to the report, the game warden
or law enforcement officer shall forward to the director a certified copy of the
operational checklist and test records of a breath test and a copy of the certified copy
of the analytical report for a blood or urine test for all tests administered at the direction
of the game warden or officer.

### § 20.1-13.1-06. Revocation of privilege to operate motorboat or vessel upon refusal to

submit to testing.
1. If a person refuses to submit to testing under section 20.1-13.1-01, no chemical test
may be given, but the game warden or law enforcement officer shall immediately issue
to that person a statement of intent to prohibit the person from operating a motorboat
or vessel. The statement serves as the director's official notification to the person of
the director's intent to prohibit the person from operating a motorboat or vessel in this
state and of the hearing procedures under this chapter. The director, upon the receipt
of the certified written report of the game warden or law enforcement officer in the form
required by the director, forwarded by the warden or officer within five days after
issuing the statement of intent, showing that the warden or officer had probable cause
to believe the person had been operating a motorboat or vessel while in violation of
section 20.1-13-07 or had observed that the motorboat or vessel was operated in a
negligent, reckless, or hazardous manner as defined by the director by rule, that the
person was lawfully arrested if applicable, and that the person had refused to submit to
the chemical test under section 20.1-13.1-01, shall prohibit the person from operating
a motorboat or vessel in this state for the appropriate period under this section. The
period for which a person is prohibited from operating a motorboat or vessel under this
section is:
a. One year if the person's record shows that within the five years preceding the
most recent refusal under this section, the person has not been prohibited from
operating a motorboat or vessel for a violation of this chapter or for a violation of
section 20.1-13-07.
b. Two years if the person's record shows that within the five years preceding the
most recent refusal under this section, the person has once been prohibited from
operating a motorboat or vessel for a violation of this chapter or for a violation of
section 20.1-13-07.
c. Three years if the person's record shows that within the five years preceding the
most recent refusal under this section, the person has twice been prohibited from
operating a motorboat or vessel under this chapter or for a violation of section
20.1-13-07, and the prohibitions resulted from at least two separate arrests.
2. A person may not be prohibited from operating a motorboat or vessel under this
section if:
a. No administrative hearing request is made under section 20.1-13.1-08;
b. The person mails an affidavit to the director within ten days after the game
warden or law enforcement officer issues the statement of intent. The affidavit
must state that the person:
(1) Intends to voluntarily plead guilty to violating section 20.1-13-07 within
twenty-five days after the game warden or law enforcement officer issues
the statement of intent;
(2) Agrees that the person may not operate a motorboat or vessel for the
appropriate period;
(3) Acknowledges the right to a section 20.1-13.1-08 administrative hearing and
section 20.1-13.1-09 judicial review and voluntarily and knowingly waives
these rights; and
(4) Agrees that the person may not operate a motorboat or vessel for the
appropriate period as provided under this section without an administrative
hearing or judicial review, if the person does not plead guilty within
twenty-five days after the game warden or law enforcement officer issues
the statement of intent, or the court does not accept the guilty plea, or the
guilty plea is withdrawn;
c. The person pleads guilty to violating section 20.1-13-07 within twenty-five days
after the game warden or law enforcement officer issues the statement of intent;
d. The court accepts the person's guilty plea and a notice of that fact is mailed to the
director within twenty-five days after the game warden or law enforcement officer
issues the statement of intent; and

e. A copy of the final order or judgment of conviction evidencing the acceptance of
the person's guilty plea is received by the director prior to the end of the
prohibition from operating a motorboat or vessel.
3. The court shall mail a copy of an order granting a withdrawal of a guilty plea to
violating section 20.1-13-07 to the director within ten days after it is ordered. Upon
receipt of the order, the director immediately shall prohibit the person from operating a
motorboat or vessel as provided under this section without providing an administrative
hearing.
### § 20.1-13.1-07. Administrative sanction for operating motorboat or vessel while having

certain drug concentrations.
1. After the receipt of the certified report of a game warden or a law enforcement officer
and if no written request for hearing has been received from the arrested person under
section 20.1-13.1-08, or if that hearing is requested and the findings, conclusion, and
decision from the hearing confirm that the game warden or law enforcement officer
had probable cause to arrest the person and chemical test results show that the
arrested person was operating a motorboat or vessel while having an alcohol, other
drug, or a combination thereof concentration of at least ten one-hundredths of one
percent by weight at the time of the performance of a test within two hours after
operating a motorboat or vessel, the director shall prohibit the person from operating
any motorboat or vessel in this state as follows:
a. For ninety-one days if the person's record shows that, within the five years
preceding the date of the arrest, the person has not previously violated section
vessel under this chapter.
b. For three hundred sixty-four days if the person's record shows that, within the five
years preceding the date of the arrest, the person has once previously violated
section 20.1-13-07 or the person has once been prohibited from operating a
motorboat or vessel under this chapter.
c. For two years if the person's record shows that within the five years preceding the
date of the arrest, the person has twice been prohibited from operating a
motorboat or vessel under this chapter, or for a violation of section 20.1-13-07, or
any combination thereof, and the prohibitions resulted from at least two separate
arrests.
2. A person who is prohibited from operating a motorboat or a vessel under subdivision a
of subsection 1 shall serve the prohibition within the time period between May first and
October first. If the person is unable to serve the full prohibition within this time period
in a single year, the person shall serve the remaining portion of the prohibition during
the same time period in subsequent years.
### § 20.1-13.1-08. Administrative hearing on request.

1. Before prohibiting a person from operating a motorboat or vessel under section
hearing if the person mails a request for the hearing to the director within ten days
after the date the game warden or law enforcement officer issued a statement of intent
to prohibit the person from operating a motorboat or vessel. The hearing must be held
within twenty-five days after the date of issuance of the statement of intent, but the
hearing officer may extend the hearing to within thirty-five days after the issuance of
the statement of intent if good cause is shown.
2. If the issue to be determined by the hearing concerns the prohibition from operating a
motorboat or vessel for operating a motorboat or vessel while having an alcohol, other
drug, or a combination thereof concentration of at least ten one-hundredths of one
percent by weight, the hearing must be before a hearing officer assigned by the
director and at a time and place designated by the director. The hearing must be
recorded and its scope may cover only the issues of whether the arresting warden or
officer had probable cause to believe the individual had been operating a motorboat or

vessel in violation of section 20.1-13-07; whether the individual was placed under
arrest; whether the individual was tested in accordance with section 20.1-13.1-01 or
results show the individual had an alcohol, other drug, or a combination thereof
concentration of at least ten one-hundredths of one percent by weight. For purposes of
this section, a copy of a certified copy of an analytical report of a blood or urine sample
from the director of the state crime laboratory or the director's designee, or a certified
copy of the checklist and test records from a certified breath test operator establish
prima facie the alcohol, other drug, or a combination thereof concentration shown
therein. Whether the individual was informed that that individual may be prohibited
from operating a motorboat or vessel based on the results of the chemical test is not
an issue.
3. If the issue to be determined by the hearing concerns the prohibition from operating a
motorboat or vessel for refusing to submit to a chemical test under section
20.1-13.1-01, the hearing must be before a hearing officer assigned by the director at
a time and place designated by the director. The hearing must be recorded. The scope
of a hearing for refusing to submit to a chemical test under section 20.1-13.1-01 may
cover only the issues of whether a game warden or law enforcement officer had
probable cause to believe the person had been operating a motorboat or vessel in
violation of section 20.1-13-07; whether the person was placed under arrest; and
whether that person refused to submit to the chemical test.
4. At a hearing under this section, the regularly kept records of the director and state
crime laboratory may be introduced. Those records establish prima facie their contents
without further foundation. For purposes of this chapter, the following are deemed
regularly kept records of the director and state crime laboratory:
a. Any copy of a certified copy of an analytical report of a blood or urine sample
received by the director from the director of the state crime laboratory or the
director's designee or a game warden or a law enforcement officer or a certified
copy of the checklist and test records received by the director from a certified
breath test operator; and
b. Any copy of a certified copy of a certificate of the director of the state crime
laboratory or the director's designee relating to approved methods, devices,
operators, materials, and checklists used for testing for alcohol concentration or
the presence of other drugs, or a combination thereof, received by the director
from the director of the state crime laboratory or the director's designee that have
been electronically posted with the state crime laboratory division of the attorney
general at the attorney general website.
5. At the close of the hearing, the hearing officer shall notify the person of the hearing
officer's findings of fact, conclusions of law, and decision based on the findings and
conclusions by issuing to the person a copy of the decision within ten days of the
conclusion of the hearing. If the hearing officer does not find in favor of the person, the
copy of the decision serves as the director's official notification to the person that the
person is prohibited from operating a motorboat or vessel in this state. The hearing
officer shall report the findings, conclusions, and decisions to the director within ten
days of the conclusion of the hearing.
6. If the person who requested a hearing under this section fails to appear at the hearing
without justification, the right to the hearing is waived, and the hearing officer's
determination on prohibition of the person from operating a motorboat or vessel will be
based on the written request for hearing, game warden's or law enforcement officer's
report, and other evidence as may be available. The hearing officer shall, on the date
for which the hearing is scheduled, mail to the person, by regular mail, at the address
on file with the director, or at any other address for the person or the person's legal
representative supplied in the request for hearing, a copy of the decision which serves
as the director's official notification to the person that the person is prohibited from
operating a motorboat or vessel in this state for the appropriate period. Even if the
person for whom the hearing is scheduled fails to appear at the hearing, the hearing is

deemed to have been held on the date for which it is scheduled for purposes of appeal
under section 20.1-13.1-09.
### § 20.1-13.1-09. Judicial review.

Any person who has been prohibited from operating a motorboat or vessel by the decision
of the hearing officer under section 20.1-13.1-08 may appeal within seven days after the date
the hearing officer issued the decision under section 20.1-13.1-08 as shown by the date of the
hearing officer's decision, notwithstanding section 28-32-42, by serving on the director and filing
a notice of appeal and specifications of error in the district court in the county where the events
occurred for which the demand for a chemical test was made or in the county in which the
administrative hearing was held. The court shall set the matter for hearing, and the petitioner
shall give twenty days' notice of the hearing to the director and to the hearing officer who
rendered the decision. Neither the director nor the court may stay the decision pending decision
on appeal. Within fifteen days after receipt of the notice of appeal, the director or the hearing
officer who rendered the decision shall file in the office of the clerk of court to which the appeal
is taken a certified transcript of the testimony and all other proceedings. This record is the
record on which the appeal must be determined. No additional evidence may be heard. The
court shall affirm the decision of the director or hearing officer unless it finds the evidence
insufficient to warrant the conclusion reached by the director or hearing officer. The court may
direct that the matter be returned to the director or hearing officer for rehearing and the
presentation of additional evidence.
### § 20.1-13.1-10. Interpretation of chemical tests.

Upon the trial of any action or proceeding arising out of acts alleged to have been
committed by any individual while operating a motorboat or vessel while under the influence of
intoxicating liquor, drugs, or a combination thereof, evidence of the amount of alcohol
concentration or presence of other drugs, or a combination thereof, in the individual's blood,
breath, or urine at the time of the act alleged as shown by a chemical analysis of the blood,
breath, or urine is admissible. For the purpose of this section:
1. An individual having an alcohol, other drug, or a combination thereof concentration of
at least ten one-hundredths of one percent by weight at the time of the performance of
a chemical test within two hours after operating a motorboat or vessel is under the
influence of intoxicating liquor, drugs, or a combination thereof at the time of operating
a motorboat or vessel.
2. Alcohol concentration is based upon grams of alcohol per one hundred milliliters of
blood or grams of alcohol per two hundred ten liters of end expiratory breath or grams
of alcohol per sixty-seven milliliters of urine.
3. The results of the chemical test must be received in evidence when it is shown that the
sample was properly obtained and the test was fairly administered, and if the test is
shown to have been performed according to methods and with devices approved by
the director of the state crime laboratory or the director's designee, and by an
individual possessing a certificate of qualification to administer the test issued by the
director of the state crime laboratory or the director's designee. The director of the
state crime laboratory or the director's designee is authorized to approve satisfactory
devices and methods of chemical tests and determine the qualifications of individuals
to conduct such tests, and shall issue a certificate to every qualified operator. An
operator shall exhibit the certificate upon demand of the individual requested to take
the chemical test.
4. The director of the state crime laboratory or the director's designee may appoint, train,
certify, and supervise field inspectors of breath testing equipment and its operation,
and the inspectors shall report the findings of any inspection to the director of the state
crime laboratory or the director's designee for appropriate action. Upon approval of the
methods or devices, or both, required to perform the tests and the individuals qualified
to administer them, the director of the state crime laboratory or the director's designee
shall prepare, certify, and electronically post a written record of the approval with the

state crime laboratory division of the attorney general at the attorney general website,
and shall include in the record:
a. An annual register of the specific testing devices currently approved, including
serial number, location, and the date and results of last inspection.
b. An annual register of currently qualified and certified operators of the devices,
stating the date of certification and its expiration.
c. The operational checklist and forms prescribing the methods currently approved
by the director of the state crime laboratory or the director's designee in using the
devices during the administration of the tests.
d. The certified records electronically posted under this section may be
supplemented when the director of the state crime laboratory or the director's
designee determines it to be necessary, and any certified supplemental records
have the same force and effect as the records that are supplemented.
e. The state crime laboratory shall make the certified records required by this
section available for download in a printable format on the attorney general
website.
5. Copies of the state crime laboratory certified records referred to in subsections 3 and 4
that have been electronically posted with the state crime laboratory division of the
attorney general at the attorney general website must be admitted as prima facie
evidence of the matters stated in the records.
6. A certified copy of the analytical report of a blood or urine test issued by the director of
the state crime laboratory or the director's designee must be accepted as prima facie
evidence of the results of a chemical test performed under this chapter.
7. Superseded by N.D.R.Ev., Rule 707.
8. A signed statement from the nurse or medical technician drawing the blood sample for
testing as set forth in subsection 3 is prima facie evidence that the blood sample was
properly drawn and no further foundation for the admission of such evidence may be
required.
### § 20.1-13.1-11. Proof of refusal admissible in any action or proceeding.

If the person under arrest refuses to submit to the chemical test, proof of refusal is
admissible in any action or proceeding arising out of acts alleged to have been committed while
the person was operating a motorboat or vessel while under the influence of intoxicating liquor,
drugs, or a combination thereof.
### § 20.1-13.1-12. Effect of evidence of chemical test.

This chapter does not limit the introduction of any other competent evidence bearing on the
question of whether the person was under the influence of intoxicating liquor, drugs, or a
combination thereof, but, if the chemical test results show an alcohol, other drug, or a
combination thereof concentration of at least ten one-hundredths of one percent, the purpose of
the evidence must be limited to the issues of probable cause, whether an arrest was made prior
to the administering of the test, and the validity of the test results.
### § 20.1-13.1-13. Liability.

Any individual medically qualified to draw blood or any licensed physician, nurse,
technician, or an employee of a hospital who draws blood from any person pursuant to a
request of any arresting warden or officer is not liable in any civil action for damages arising out
of the act except for gross negligence.
### § 20.1-13.1-14. Operation of motorboat or vessel during period of prohibition - Penalty.

Any person who operates a motorboat or vessel on the waters of this state during the period
the person is prohibited from operating a motorboat or vessel under this chapter is guilty of a
class A misdemeanor.
