# Title 12.1 — Criminal Code

## Chapter 12.1-01 — Application - Purposes - Proof - Definitions

### § 12.1-01-01. Title - Retroactivity - Application - Contempt power.

1. Title 12.1 of the Century Code may be cited as the North Dakota Criminal Code.
2. This title, except as provided in subsection 3, shall not apply to offenses committed
prior to its effective date. Prosecutions for such offenses shall be governed by prior
law, which is continued in effect for that purpose. For the purposes of this section, an
offense was committed prior to the effective date of this title if any of the elements of
the offense occurred prior thereto.
3. In cases pending on or after the effective date of this title, and involving offenses
committed prior thereto:
a. The provisions of this title according a defense or mitigation shall apply, with the
consent of the defendant.
b. The court, with the consent of the defendant, may impose sentence under the
provisions of this title which are applicable to the offense and the offender.
4. This section does not affect the power of a court or legislative assembly to punish for
contempt, or to employ any enforcement sanction authorized by law, nor does this
section affect any power conferred by law upon military authority to impose
punishment upon offenders.
### § 12.1-01-02. General purposes.

The general purposes of this title are to establish a system of prohibitions, penalties, and
correctional measures to deal with conduct that unjustifiably and inexcusably causes or
threatens harm to those individual or public interests for which governmental protection is
appropriate. To this end, the provisions of this title are intended, and shall be construed, to
achieve the following objectives:
1. To ensure the public safety through: a. vindication of public norms by the imposition of
merited punishment; b. the deterrent influence of the penalties hereinafter provided; c.
the rehabilitation of those convicted of violations of this title; and d. such confinement
as may be necessary to prevent likely recurrence of serious criminal behavior.
2. By definition and grading of offenses, to define the limits and systematize the exercise
of discretion in punishment and to give fair warning of what is prohibited and of the
consequences of violation.
3. To prescribe penalties which are proportionate to the seriousness of offenses and
which permit recognition of differences in rehabilitation possibilities among individual
offenders.
4. To safeguard conduct that is without guilt from condemnation as criminal and to
condemn conduct that is with guilt as criminal.
5. To prevent arbitrary or oppressive treatment of persons accused or convicted of
offenses.
6. To define the scope of state interest in law enforcement against specific offenses and
to systematize the exercise of state criminal jurisdiction.
### § 12.1-01-03. Proof and presumptions.

1. No person may be convicted of an offense unless each element of the offense is
proved beyond a reasonable doubt. An accused is presumed innocent until proven
guilty. The fact that the accused has been arrested, confined, or charged with the
offense gives rise to no inference of guilt at the accused's trial. "Element of an offense"
means:
a. The forbidden conduct;

b. The attendant circumstances specified in the definition and grading of the
offense;
c. The required culpability;
d. Any required result; and
e. The nonexistence of a defense as to which there is evidence in the case sufficient
to give rise to a reasonable doubt on the issue.
2. Subsection 1 does not require negating a defense:
a. By allegation in the charging document; or
b. By proof, unless the issue is in the case as a result of evidence sufficient to raise
a reasonable doubt on the issue.
Unless it is otherwise provided or the context plainly requires otherwise, if a statute
outside this title defining an offense, or a related statute, or a rule or regulation
thereunder, contains a provision constituting an exception from criminal liability for
conduct which would otherwise be included within the prohibition of the offense, that
the defendant came within such exception is a defense.
3. Subsection 1 does not apply to any defense which is explicitly designated an
"affirmative defense". An affirmative defense must be proved by the defendant by a
preponderance of evidence.
4. When a statute establishes a presumption, it has the following consequences:
a. If there is sufficient evidence of the facts which gave rise to the presumption, the
presumed fact is deemed sufficiently proved to warrant submission of the issue to
a jury unless the court is satisfied that the evidence as a whole clearly negates
the presumed fact.
b. In submitting the issue of the existence of the presumed fact to a jury, the court
shall charge that, although the evidence as a whole must establish the presumed
fact beyond a reasonable doubt, the jury may arrive at that judgment on the basis
of the presumption alone, since the law regards the facts giving rise to the
presumption as strong evidence of the fact presumed.
5. When a statute declares that given facts constitute a prima facie case, proof of such
facts warrants submission of a case to the jury with the usual instructions on burden of
proof and without additional instructions attributing any special probative force to the
facts proved.
### § 12.1-01-03.1. Presumption of age.

1. In determining an individual's age for purposes of this title, the individual's date of birth
as provided by any of the following is presumed to be the individual's legal date of
birth:
a. A state government in the form of a birth certificate, other state-issued
identification, or a certified copy of a birth certificate that includes the individual's
date of birth;
b. The United States government in the form of a tribal identification document,
military identification, passport, passport card, permanent resident card,
certificate of United States citizenship, certificate of naturalization, border
crossing card, visa, or other entry document that includes the individual's date of
birth; or
c. A foreign government in the form of a passport, driver's license, or other foreign
government-issued identity document that includes the individual's date of birth. If
there is a conflict between government issued forms, a government issued birth
certificate or a certified copy of a birth certificate takes precedence.
2. The presumption in subsection 1 may be rebutted by clear and convincing evidence to
the contrary.
### § 12.1-01-04. General definitions.

As used in this title, unless a different meaning plainly is required:
1. "Absconded" means when a probationer, parolee, participant in a pretrial services
program, or participant in a prosecution-led diversion program willfully avoids

supervision by making their whereabouts unknown or fails to report to a supervising
authority.
2. "Act" or "action" means a bodily movement, whether voluntary or involuntary.
3. "Acted", "acts", and "actions" include, where relevant, "omitted to act" and "omissions
to act".
4. "Actor" includes, where relevant, a person guilty of an omission.
5. "Bodily injury" means any impairment of physical condition, including physical pain.
6. "Court" means any of the following courts: the supreme court, a district court, and
where relevant, a municipal court.
7. "Dangerous weapon" includes any switchblade or gravity knife, machete, scimitar,
stiletto, sword, or dagger; any billy, blackjack, sap, bludgeon, cudgel, metal knuckles,
or sand club; any slingshot; any bow and arrow, crossbow, or spear; any weapon that
will expel, or is readily capable of expelling, a projectile by the action of a spring,
compressed air, or compressed gas including any such weapon, loaded or unloaded,
commonly referred to as a BB gun, air rifle, or CO2 gun; and any projector of a bomb
or any object containing or capable of producing and emitting any noxious liquid, gas,
or substance.
8. "Destructive device" means any explosive, incendiary or poison gas bomb, grenade,
mine, rocket, missile, or similar device.
9. "Explosive" means gunpowders, powders used for blasting, all forms of high
explosives, blasting materials, fuses (other than electric circuit breakers), detonators
and other detonating agents, smokeless powders, and any chemical compounds,
mechanical mixture, or other ingredients in such proportions, quantities, or packing
that ignition by fire, by friction, by concussion, by percussion, or by detonation of the
compound, or material, or any part thereof may cause an explosion.
10. "Firearm" means any weapon that will expel, or is readily capable of expelling, a
projectile by the action of an explosive and includes any such weapon, loaded or
unloaded, commonly referred to as a pistol, revolver, rifle, gun, machine gun, shotgun,
bazooka, or cannon.
11. "Force" means physical action.
12. "Government" means:
a. The government of this state or any political subdivision of this state;
b. Any agency, subdivision, or department of the state or any political subdivision of
the state, including the executive, legislative, and judicial branches;
c. Any corporation or other entity established by law to carry on any governmental
function; and
d. Any commission, corporation, or agency established by statute, compact, or
contract between or among governments for the execution of intergovernmental
programs.
13. "Governmental function" includes any activity that one or more public servants are
legally authorized to undertake on behalf of government.
14. "Harm" means loss, disadvantage, or injury to the person affected, and includes loss,
disadvantage, or injury to any other person in whose welfare the person affected is
interested.
15. "Included offense" means an offense:
a. That is established by proof of the same or less than all the facts required to
establish commission of the offense charged;
b. That consists of criminal facilitation of or an attempt or solicitation to commit the
offense charged; or
c. That differed from the offense charged only in that it constitutes a less serious
harm or risk of harm to the same person, property, or public interest, or because
a lesser degree of culpability suffices to establish its commission.
16. "Includes" should be read as if the phrase "but is not limited to" were also set forth.
17. "Law enforcement officer" or "peace officer" means a public servant authorized by law
or by a government agency or branch to enforce the law and to conduct or engage in
investigations or prosecutions for violations of law.

18. "Local" means of or pertaining to any political subdivision of the state.
19. "Manifest injustice" means a specific finding by the court that the imposition of
sentence is unreasonably harsh or shocking to the conscience of a reasonable
individual, with due consideration of the totality of circumstances.
20. "Offense" means conduct for which a term of imprisonment or a fine is authorized by
statute after conviction.
21. "Official action" includes a decision, opinion, recommendation, vote, or other exercise
of discretion by any government agency.
22. "Official proceeding" means a proceeding heard or which may be heard before any
government agency or branch or public servant authorized to take evidence under
oath, including any referee, hearing examiner, commissioner, notary, or other person
taking testimony or a deposition in connection with any such proceeding.
23. "Omission" means a failure to act.
24. As used in this title and in sections outside this title which define offenses, "person"
includes, where relevant, a corporation, limited liability company, partnership,
unincorporated association, or other legal entity. When used to designate a party
whose property may be the subject of action constituting an offense, the word "person"
includes a government that may lawfully own property in this state.
25. "Political subdivision" as used in this title and in any statute outside this title which
defines an offense means a county, city, school district, township, and any other local
governmental entity created by law.
26. "Possesses" means an individual has:
a. Direct physical control of something on or around the individual's person; or
b. The power and intention to exercise control over something accessible to but not
on or around the individual's person.
27. "Public servant" as used in this title and in any statute outside this title which defines
an offense means any officer or employee of government, including law enforcement
officers, whether elected or appointed, and any person participating in the
performance of a governmental function. The term does not include witnesses.
28. "Responsivity factors" means characteristics of an individual which affect the
individual's ability to respond favorably or unfavorably to a treatment goal.
29. "Risk assessment" means a validated, standardized actuarial tool used to identify
potential risk factors that increase the likelihood an individual will reoffend and
responsivity factors that, when addressed, reduce the likelihood an individual will
reoffend. The initial phase is an assessment tool that is administered by a trained
corrections professional. A predetermined score on the initial phase initiates the
secondary process, approved by the department of health and human services, that
may include a clinical interview, psychological testing, and verification through
collateral information or psychophysiological testing, or both. The department of health
and human services shall perform the secondary process of the risk assessment.
30. "Serious bodily injury" means bodily injury that creates a substantial risk of death or
which causes serious permanent disfigurement, unconsciousness, extreme pain,
permanent loss or impairment of the function of any bodily member or organ, a bone
fracture, or impediment of air flow or blood flow to the brain or lungs.
31. "Signature" includes any name, mark, or sign written or affixed with intent to
authenticate any instrument or writing.
32. "Substantial bodily injury" means a substantial temporary disfigurement, loss, or
impairment of the function of any bodily member or organ.
33. "Thing of value" or "thing of pecuniary value" means a thing of value in the form of
money, tangible or intangible property, commercial interests, or anything else the
primary significance of which is economic gain to the recipient.
34. "Tier 1 mental health professional" has the same meaning as provided under section
25-01-01.

### § 12.1-01-05. Crimes defined by state law shall not be superseded by city or county

ordinance or by home rule city's or county's charter or ordinance.
Except as provided in section 40-05-06, an offense defined in this title or elsewhere by law
may not be superseded by any city or county ordinance, or city or county home rule charter, or
by an ordinance adopted pursuant to such a charter, and all such offense definitions shall have
full force and effect within the territorial limits and other jurisdiction of home rule cities or
counties. This section does not preclude any city or county from enacting any ordinance
containing penal language when otherwise authorized to do so by law.
