38.02.080 Any Indian Persons Under the Influence of Intoxicating Liquor or Any Other

(a) An Indian may not drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in the Turtle Mountain Jurisdiction if any of the following apply:

(1) That person has a blood alcohol 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 the driving.

(2) That person is under the influence of intoxicating liquor.

(3) That person is under the influence of any drug or substances to a degree which renders that person incapable of safely driving.

(4) That person is under the combined influence of alcohol and any other drugs or substance to a degree which renders that person incapable of safely driving.

The fact that any person charged with violating this section is or has been legally entitled to use alcohol or other drugs or substances is not a defense against any charge for violating this section, unless a drug which predominately caused impairment was used only as directed or cautioned by a practitioner who legally prescribed or dispensed the drug to that person.

(b) Upon conviction, the court may order the motor vehicle number plates of the motor vehicle owned and operated by the offender at the time of the offense to be impounded by the Law Enforcement Officers, as is appropriate, for the duration of the period of suspension of the offender's driver's license or driving privilege by the licensing authority. The impounded motor vehicle number plates may be released, upon the order of the court, to a bona fide purchaser of the offender's motor vehicle, if that purchaser produces a new certificate of title issued by the director.

(c) A person convicted of violating this section, or an equivalent ordinance, must be sentenced in accordance with this Subsection.

(1) For a first offense, the sentence must include both a fine of at least two hundred fifty dollars ($250) and an order for addiction evaluation by an appropriate licensed addiction treatment program and three days imprisonment or ten days community service.

(2) For a second offense within five years, the sentence must include at least four days imprisonment of which forty-eight hours must be served consecutively, or ten days community service; a fine of at least five hundred ($500) dollars; and an order for addiction evaluation by an appropriate licensed addiction treatment program.

(3) For a third offense within five years, the sentence must include at least sixty days imprisonment of which forty-eight hours must be served consecutively; a fine of one thousand ($1,000) dollars, and an order for addiction evaluation by an appropriate licensed addiction treatment program.

(4) For a fourth offense within seven years, the sentence must include one hundred eighty days imprisonment, of which forty-eight hours must be served consecutively and a fine of one thousand ($1,000) dollars.

(5) The execution or imposition of sentence under this section may not be suspended or deferred except that a fine or a sentence of imprisonment may be suspended in any of the following instances:

(6) Upon conviction of being in actual physical control of a motor vehicle in violation of this section or equivalent ordinance.

(7) If the defendant is under age eighteen when convicted except that if the defendant has, within the preceding five years, previously been convicted of this section or equivalent ordinance, the sentence must include at least forty-eight consecutive hours imprisonment in a minimum security facility or at least ten days of community service. The execution of the sentence may not be suspended nor the imposition of sentence deferred.

(8) For purposes of this section, conviction of an offense under a law or ordinance of the state of North Dakota For purposes of this section, conviction of an offense under a law or ordinance of the state of North Dakota which is equivalent this section must be considered a prior offense if such offense was committed within the time limitations specified in this Subsection.

(9) If the penalty mandated by this section includes imprisonment upon conviction of a violation of this section or equivalent ordinance, and if an addiction evaluation has indicated that the defendant needs treatment, the court may order the defendant to undergo inpatient treatment at an appropriate licensed addiction treatment program and the time spent by the defendant in the inpatient treatment must becredited as a portion of a sentence of imprisonment under this section.