State v. Birchfield, No. 20140109.

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtMcEVERS, Justice.
Citation858 N.W.2d 302
PartiesSTATE of North Dakota, Plaintiff and Appellee v. Danny BIRCHFIELD, Defendant and Appellant.
Docket NumberNo. 20140109.
Decision Date15 January 2015

858 N.W.2d 302

STATE of North Dakota, Plaintiff and Appellee
Danny BIRCHFIELD, Defendant and Appellant.

No. 20140109.

Supreme Court of North Dakota.

Jan. 15, 2015.
Rehearing Denied Feb. 12, 2015.

858 N.W.2d 303

Justin M. Balzer, Morton County Assistant State's Attorney, Mandan, N.D., for plaintiff and appellee.

Danny L. Herbel, The Regency Business Center, Bismarck, N.D., for defendant and appellant.

Ken R. Sorenson, Office of Attorney General, Bismarck, N.D., for amicus curiae.


McEVERS, Justice.

¶ 1] Danny Birchfield appeals from a criminal judgment entered on a conditional plea of guilty to class B misdemeanor refusal to submit to a chemical test in violation of N.D.C.C. § 39–08–01, reserving his right to appeal the district court's denial of his motion to dismiss the charge on constitutional grounds. Because we conclude the criminal refusal statute does not violate Birchfield's rights under the Fourth Amendment or N.D. Const. art. I, § 8, we affirm the criminal judgment.


[¶ 2] On October 10, 2013, Birchfield drove into a ditch in Morton County. A highway patrol officer arrived at the scene, believed Birchfield was intoxicated, and asked Birchfield to perform field sobriety tests, which he failed. Birchfield took a preliminary breath test, which revealed a .254 percent alcohol concentration. The officer placed Birchfield under arrest and read him the implied consent advisory. Birchfield refused to consent to a chemical test.

[¶ 3] Birchfield was charged with refusal to submit to a chemical test in violation of N.D.C.C. § 39–08–01, a class B misdemeanor. Birchfield moved to dismiss the criminal charge, contending N.D.C.C. § 39–08–01, which criminalizes a refusal to submit to a chemical test, is unconstitutional under the Fourth Amendment and its state counterpart, N.D. Const. art. I, § 8. The district court concluded Birchfield's rights under these 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.


[¶ 4] Birchfield argues the district court erred in denying his motion to dismiss because the criminal refusal statute is unconstitutional under the Fourth Amendment and N.D. Const. art. I, § 8, and as applied to him.

[¶ 5] Our standard for reviewing constitutional challenges to legislative enactments is well-established:

The determination whether a statute is unconstitutional is a question of law, which is fully reviewable on appeal. All regularly enacted statutes carry a strong presumption of constitutionality,

[858 N.W.2d 304

which is conclusive unless the party challenging the statute clearly demonstrates that it contravenes the state or federal constitution. Any doubt about a statute's constitutionality must, when possible, be resolved in favor of its validity. The power to declare a legislative act unconstitutional is one of the highest functions of the courts, and that power must be exercised with great restraint. The presumption of constitutionality is so strong that a statute will not be declared unconstitutional unless its invalidity is, in the court's judgment, beyond a reasonable doubt. The party challenging the constitutionality of a statute has the burden of proving its constitutional infirmity.

Simons v. State, 2011 ND 190, ¶ 23, 803 N.W.2d 587 (internal citations omitted).

[¶ 6] Driving is a privilege, not a constitutional right and is subject to reasonable control by the State under its police power. See, e.g., State v. Smith, 2014 ND 152, ¶ 8, 849 N.W.2d 599 ; McCoy v. North Dakota Dep't of Transp., 2014 ND 119, ¶ 26, 848 N.W.2d 659. Under N.D.C.C. § 39–20–01(1), an individual who drives “is deemed to have given consent, and shall consent, subject to the provisions of this chapter, to a chemical test....” A chemical test may be administered “only after placing the individual ... under arrest.” N.D.C.C. § 39–20–01(2). However, a driver has a right to refuse a chemical test under N.D.C.C. § 39–20–04(1), which provides, “If a person refuses to submit to testing under section 39–20–01..., none may be given.” See State v. Fetch, 2014 ND 195, ¶ 8, 855 N.W.2d 389.

¶ 7] The criminal refusal provision is contained in N.D.C.C. § 39–08–01, which provides in relevant part:
1. A person 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 this state if any of the following apply:
e. That individual refuses to submit to any of the following:
(2) A chemical test, or tests, of the individual's blood, breath, or urine to determine the alcohol concentration or presence of other drugs, or combination thereof, in the individual's blood, breath, or urine, at the direction of a law enforcement officer under section 39–20–01 ; ...
2. An individual who operates a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this state who refuses to submit to a chemical test, or tests, required under section ... 39–20–01 ... is guilty of an offense under this section.

Section 39–20–01, N.D.C.C., sets forth the implied consent requirements for motor vehicle drivers in general and in subsection 3 states that the “law enforcement officer shall inform the individual charged that North Dakota law requires the individual to take the test to determine whether the individual is under the influence of alcohol or drugs” and “that refusal to take the test directed by the law enforcement officer is a crime punishable in the same manner as driving under the influence.”

[¶ 8] The Fourth Amendment and N.D. Const. art. I, § 8, prohibit unreasonable searches and seizures, and the administration of chemical tests to determine alcohol concentration is a search for purposes of these constitutional provisions. See Smith, 2014 ND 152, ¶ 7, 849 N.W.2d 599 ; McCoy, 2014 ND 119, ¶ 10, 848 N.W.2d 659. Before the Legislature enacted

[858 N.W.2d 305

the criminal refusal statute in 2013, this Court had observed “[t]here is no Federal constitutional right to be entirely free of intoxication tests,” State v. Murphy, 516 N.W.2d 285, 286 n. 1 (N.D.1994), and noted a “driver has only a conditional right to refuse a chemical test” because “[a]mong the conditions imposed upon the exercise of one's right to refuse a chemical test are the revocation of the person's license or permit to drive a vehicle and the admission in evidence of proof of refusal in civil or criminal actions.” State v. Murphy, 527 N.W.2d 254, 256 (N.D.1995). We had not specifically ruled on a Fourth Amendment challenge to the penalty provisions of the implied consent statutes as they existed at the time.

¶ 9] However, other states during this period had enacted statutes criminalizing the refusal to consent to a chemical test, and Fourth Amendment challenges to those statutes were unsuccessful. For example, in Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1451 (9th Cir.1986), the Ninth Circuit Court of Appeals upheld Alaska's criminal refusal statute against a Fourth Amendment challenge:
Appellants' basic argument is that they have been deprived of their right to be free of unreasonable searches. Nothing in the Alaska statutes here at issue deprives them of that right, or otherwise burdens it. A motorist who has been stopped for DWI and who wishes to vindicate himself has two choices under the law. He may take the test as the state prefers him to do. If he does, and the evidence obtained is favorable to him, he will gain his prompt release with no charge being made for drunk driving.See Mackey v. Montrym, 443 U.S. [1, 19, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979) ]. If the evidence is unfavorable, he may challenge the government's use of that evidence by attacking the validity of the arrest. If he does not take the test, he can still challenge the evidence of his refusal by once again attacking the validity of the arrest. Either way, he remains fully capable of asserting the only Fourth Amendment right he possesses: the right to avoid arrest on less than probable cause. Thus, no improper condition has been placed on the exercise of appellants' rights under the Fourth Amendment.

See also State v. Netland, 762 N.W.2d 202, 214 (Minn.2009) (“We hold that the criminal test-refusal statute does not violate the prohibition against unreasonable searches and seizures found in the federal and state constitutions because under the exigency exception, no warrant is necessary to secure a blood-alcohol test where there is probable cause to suspect a crime in which chemical impairment is an element of the offense.”) (footnote omitted); Rowley v. Commonwealth, 48 Va.App. 181, 629 S.E.2d 188, 191 (2006) (no Fourth Amendment violation for criminally punishing refusal to provide breath sample because the “act of driving constitutes an irrevocable, albeit implied, consent to the officer's demand for a breath sample”). The courts in these cases relied in part on the United States Supreme Court's decision in Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (internal citation omitted), which upheld the warrantless blood test of a person arrested for driving under the influence because the...

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