
Filed 9/15/16 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA







2016 ND 182







State of North Dakota, 		Plaintiff and Appellee



v.



Danny Birchfield, 		Defendant and Appellant







No. 20140109







Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.  Disposition upon remand from the United States Supreme Court.



REMANDED.



Per Curiam.



Morton County State’s Attorney’s Office, 210 2nd Avenue Northwest, Mandan, N.D. 58554, for plaintiff and appellee.



Danny L. Herbel, 3333 East Broadway Avenue, Suite 1205, Bismarck, N.D. 58501, for defendant and appellant.



Attorney General’s Office, 600 East Boulevard Avenue, Bismarck, N.D. 58505, for amicus curiae North Dakota Attorney General.

State v. Birchfield

No. 20140109



Per Curiam.

[¶1]	After being arrested for driving under the influence, Danny Birchfield refused to consent to a warrantless chemical blood test and was charged with refusal to submit to a chemical test in violation of N.D.C.C. § 39-08-01.  He moved to dismiss the criminal charge, contending N.D.C.C. § 39-08-01, which criminalizes the refusal to submit to a chemical test, is unconstitutional under the Fourth Amendment and N.D. Const. art. I, § 8.  The district court concluded Birchfield’s rights under those provisions were not violated by the criminal charge for refusing to consent to a chemical test. Birchfield conditionally pled guilty under N.D.R.Crim.P. 11(a)(2), reserving his right to appeal the court’s order denying his motion to dismiss.

[¶2]	In 
State v. Birchfield
, 2015 ND 6, ¶¶ 1, 19, 858 N.W.2d 302, we held the statute criminalizing Birchfield’s refusal to submit to a chemical test did not violate his right to be free from an unreasonable search and seizure under the Fourth Amendment, or N.D. Const. art. I, § 18.  The United States Supreme Court granted Birchfield’s petition for writ of certiorari.

[¶3]	In 
Birchfield v. North Dakota
, 136 S.Ct. 2160, 2184-85 (2016), the United States Supreme Court held the Fourth Amendment permits warrantless breath tests incident to a lawful arrest for drunk driving, but absent another exception to the warrant requirement, does not permit warrantless blood tests incident to a lawful arrest for drunk driving.  The United States Supreme Court concluded that in Birchfield’s prosecution for refusing a warrantless blood test incident to his arrest, the refused blood test was not justified as a search incident to his arrest and reversed his conviction because he was threatened with an unlawful search.  
Id.
 at 2186.  The Court remanded to this Court for further proceedings not inconsistent with its opinion.  
Id.

[¶4]	We vacate our opinion affirming Birchfield’s conviction for refusal to submit to a chemical blood test to the extent it is inconsistent with 
Birchfield v. North Dakota
.  We remand to the district court with directions to allow Birchfield to withdraw his guilty plea and to dismiss with prejudice the charge of refusal to submit to a chemical test.

[¶5]	Gerald W. VandeWalle, C.J.

Lisa Fair McEvers

Daniel J. Crothers

Dale V. Sandstrom

Carol Ronning Kapsner

