
Filed 9/15/16 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA







2016 ND 183







State of North Dakota, 		Plaintiff and Appellee



v.



Jonathan Kordonowy, 		Defendant and Appellant







No. 20140327







Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Cynthia Feland, Judge.  Disposition upon remand from the United States Supreme Court.



REMANDED.



Per Curiam.



Burleigh County State’s Attorney’s Office, 514 East Thayer Avenue, Bismarck, N.D. 58501, 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. Kordonowy

No. 20140327



Per Curiam.

[¶1]	After being arrested for driving under the influence, Jonathan Kordonowy refused to submit to a chemical blood test.  The State charged Kordonowy with driving under the influence and with refusing to submit to chemical testing in violation of N.D.C.C. § 39-08-01.  Kordonowy moved to dismiss the refusal charge, arguing N.D.C.C. § 39-08-01(1)(e) was unconstitional under the Fourth Amendment and N.D. Const. art. I, § 8.  The district court denied Kordonowy’s motion and a jury found him guilty of refusal to submit to a chemical test and not guilty of driving under the influence.

[¶2]	In 
State v. Kordonowy
, 2015 ND 197, ¶ 12, 867 N.W.2d 690, we concluded the criminal refusal statute was not unconstitional under the Fourth Amendment or N.D. Const. art. I, § 8, and our decision in 
State v. Birchfield
, 2015 ND 6, 858 N.W.2d 302.

[¶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.

[¶4]	The United States Supreme Court granted Kordonowy’s petition for writ of certiorari and remanded to this Court for consideration in light of 
Birchfield v. North Dakota
.  We vacate our opinion affirming Kordonowy’s conviction for refusal to submit to a chemical blood test to the extent it is inconsistent with 
Birchfield v. North Dakota
, and we remand to the district court with directions to dismiss with prejudice the criminal refusal charge.

[¶5]	Gerald W. VandeWalle, C.J.

Lisa Fair McEvers

Daniel J. Crothers

Dale V. Sandstrom

Carol Ronning Kapsner

