State v. Kordonowy, 20140327.

• Decision Date: 06 August 2015
• Docket Number: No. 20140327.,20140327.
• Citation: 867 N.W.2d 690
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Jonathan KORDONOWY, Defendant and Appellant.
• Court: North Dakota Supreme Court

867 N.W.2d 690

STATE of North Dakota, Plaintiff and Appellee

v.Jonathan KORDONOWY, Defendant and Appellant.

No. 20140327.

Supreme Court of North Dakota.

Aug. 6, 2015.

Rehearing Denied Sept. 17, 2015.

Alexander J. Stock, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

Danny L. Herbel, Bismarck, N.D., for defendant and appellant.

Ken R. Sorenson, Assistant Attorney General, Bismarck, N.D., for amicus curiae North Dakota Attorney General.

Opinion

McEVERS, Justice.

[¶ 1] Jonathan Kordonowy appeals from a criminal judgment entered after a jury found him guilty of refusal to submit to a chemical test. Kordonowy argues the criminal refusal statute is unconstitutional and the district court erred in refusing to give his requested jury instruction informing the jury he had a right to refuse a chemical test. We affirm the judgment.

I

[¶ 2] Kordonowy was charged with driving under the influence and refusal to submit to chemical testing in violation of N.D.C.C. § 39–08–01.

[¶ 3] Kordonowy moved to dismiss the refusal charge, arguing N.D.C.C. § 39–08–01(1)(e) on its face and as it is applied to the facts of his case is unconstitutional under the Fourth Amendment of the United States Constitution and N.D. Const. art. I, § 8. He also argued N.D.C.C. § 39–08–01(1)(e) is unconstitutionally vague and the North Dakota Constitution provides greater protection than the Fourth Amendment. The State opposed the motion. The Attorney General also filed an amicus brief opposing the motion.

[¶ 4] The district court denied Kordonowy's motion to dismiss. The court concluded N.D.C.C. § 39–08–01(1)(e) is not unconstitutional under the federal or state constitutions and it is not unconstitutionally vague.

[¶ 5] A jury trial was held. Kordonowy submitted proposed jury instructions and requested an instruction informing the jury that he had a right to refuse to submit to chemical testing. The court denied Kordonowy's request to include the right to refuse instruction. The jury found Kordonowy guilty of refusal to submit to chemical testing and not guilty of driving under the influence.

II

[¶ 6] Kordonowy argues the district court erred in denying his motion to dismiss because the criminal refusal statute, N.D.C.C. § 39–08–01(1)(e), is unconstitutional under the Fourth Amendment and N.D. Const. art. I, § 8, and as applied to him.

[¶ 7] In State v. Baxter, 2015 ND 107, ¶ 5, 863 N.W.2d 208 (quoting Beylund v. Levi, 2015 ND 18, ¶ 17, 859 N.W.2d 403 ), we explained our standard for reviewing constitutional challenges to a statute:

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, 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.

[¶ 8] Section 39–08–01(1)(e), N.D.C.C., criminalizes the refusal to submit to chemical testing, providing:

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[.]

[¶ 9] Kordonowy argues N.D.C.C. § 39–08–01(1)(e) criminalizes a person's exercise of his Fourth Amendment rights. He claims a person has a constitutional right under the Fourth Amendment to refuse chemical testing until law enforcement obtain a search warrant and may not be criminally penalized for exercising his constitutional rights and refusing to consent to the search.

[¶ 10] In State v. Birchfield, 2015 ND 6, ¶ 19, 858 N.W.2d 302, we rejected Kordonowy's argument and held the criminal refusal statute does not violate the Fourth Amendment or N.D. Const. art. I, § 8. We said driving is a privilege subject to reasonable control by the State under its police power, and an individual who drives is deemed to have given consent to a chemical test. Id. at ¶ 6. We explained the implied consent laws do not authorize suspicionless searches, chemical testing is not authorized unless an officer has probable cause to believe the defendant is under the influence and the defendant has already been arrested on the charge, the statutes do not authorize a warrantless search, a chemical test will not be given if the defendant refuses, and the Legislature attached significant consequences to refusal so a driver may not avoid potential consequences of test submission and gain an advantage by refusing. Id. at ¶¶ 15–17. We said the criminal refusal statute satisfies the general reasonableness requirement of the Fourth Amendment because the State has an interest in decreasing drunk driving, the implied consent laws contain requirements protecting a driver's constitutional rights and do not allow for suspicionless searches, and criminally penalizing refusal is an efficient tool in discouraging drunk driving. Id. at ¶ 17. We held the criminal refusal statute is not unconstitutional under the state and federal constitutions. Id. at ¶ 19.

[¶ 11] At oral argument, Kordonowy argued this Court should overturn its decision in Birchfield because it “relied heavily” on case law from Minnesota that was no longer good law, including State v. Bernard, 844 N.W.2d 41 (Minn.Ct.App.2014). We note the Minnesota Court of Appeals decision in Bernard was affirmed on appeal, but the Minnesota Supreme Court rejected the Court of Appeals' reasoning and affirmed the decision based upon a different rationale. State v. Bernard, 859 N.W.2d 762 (Minn.2015). However, our decision in Birchfield was not based solely on the Minnesota Court of Appeals decision in Bernard, Kordonowy has not persuaded us Birchfield was wrongly decided, and we decline to overturn our prior decision.

[¶ 12] The criminal refusal statute is not unconstitutional under the Fourth Amendment or N.D. Const. art. I, § 8. Birchfield, 2015 ND 6, ¶ 19, 858 N.W.2d 302. We conclude the district court did not err in denying Kordonowy's motion to dismiss.

III

[¶ 13] Kordonowy argues N.D. Const. art. I, § 8 provides greater protection than the Fourth Amendment. He cites various cases in which he claims this Court held the Legislature provided greater statutory protections for searches and seizures than the Fourth Amendment, and he claims these cases support his argument that the North Dakota Constitution provides greater protection.

[¶ 14] A state may grant greater protections than the United States Constitution through its own constitution or by statute. State v. Herrick, 1997 ND 155, ¶ 19, 567 N.W.2d 336 ; State v. Nordquist, 309 N.W.2d 109, 113 (N.D.1981). Although the Legislature may have provided greater protections for certain types of searches through specific statutes, Kordonowy has not explained how N.D. Const. art. I, § 8 provides greater protection than the Fourth Amendment. We have noted N.D. Const. art. I, § 8 is “almost identical” to the Fourth Amendment. State v. Carriere, 545 N.W.2d 773, 776 (N.D.1996). Kordonowy did not provide separate analysis of our state constitution or its history. Kordonowy has not adequately supported his argument the North Dakota Constitution provides greater protection than the Fourth Amendment, and we will not address this issue any further. See State v. Haibeck, 2006 ND 100, ¶ 9, 714 N.W.2d 52 (stating arguments that are not adequately articulated, supported, and brief will not be considered on appeal).

IV

[¶ 15] Kordonowy argues the criminal refusal statute is unconstitutionally vague. He claims there is an inherent conflict in the statutory law because N.D.C.C. § 39–20–04 grants drivers the right to refuse to submit to a chemical test and N.D.C.C. § 39–08–01(1)(e) criminalizes that right to refuse. He contends the statutes provide conflicting and insufficient notice to drivers of what constitutes illegal criminal conduct.

[¶ 16] We have explained the standard we apply when a law is challenged for vagueness:

All laws must meet two requirements to survive a void-for-vagueness challenge: (1) the law must create minimum guidelines for the reasonable police officer, judge, or jury charged with enforcement of the statute; and (2) the law must provide a reasonable person with adequate and fair warning of the proscribed conduct. We use the “reasonable person” standard in reviewing a statute to determine whether these two dictates are satisfied. A law is void for vagueness if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. We review de novo a claimed violation of a constitutional right. We construe statutes to avoid constitutional infirmities, and any doubt must be resolved in favor of the statute's constitutionality.

In re Maedche, 2010 ND 171, ¶ 14, 788 N.W.2d 331 (quoting City of Fargo v. Salsman, 2009 ND 15, ¶ 21, 760 N.W.2d 123 ) (quotations and citations omitted). “A statute is not unconstitutionally vague ‘if the challenged language, when measured by common understanding and practice, gives adequate warning...