BISMARCK -- People convicted in North Dakota of refusing a warrantless blood draw may have an open door to relief after the state Supreme Court said a federal ruling applies retroactively.
Earlier in June, the state Supreme Court unanimously ruled that the Supreme Court of the United States opinion in Birchfield v. North Dakota applies retroactively to a case started in 2014, Morel v. State, involving refusal to submit to a chemical test in what began with suspected drunken driving.
Birchfield, which originated in North Dakota, joined two similar cases from Minnesota when it filtered up to the U.S. Supreme Court in 2016 as the first state-level case from North Dakota to be argued there since 1992. Essentially, the U.S. Supreme Court ruled in Birchfield that it’s unconstitutional to criminalize refusal of a warrantless blood draw owing to the intrusive nature of extracting blood from a person’s body.
North Dakota Supreme Court Chief Justice Gerald VandeWalle authored the opinion in Morel, establishing Birchfield as a substantive rule in North Dakota that applies retroactively to final convictions - given a three-pronged test - but “in very limited circumstances.”
An open door?
Bismarck attorney Dan Herbel, who argued in Birchfield and Morel, said the scope of Morel remains to be seen, but other states, such as Minnesota, New Mexico and Pennsylvania, may look to the opinion in their rulings to come over issues of refusal to submit to a chemical test.
“It’s something that another state would not be bound by, by precedent, but they would look to it as authority, persuasive authority, to help decide their own,” he said.
Burleigh County Assistant State’s Attorney Derek Steiner, who argued against Herbel in Morel, said the case came down to Birchfield applied as a procedural rule-how something is done-or a substantive rule-that something must be done.
Herbel said Morel offers a “road map” for people who might seek relief from identical convictions. Bismarck attorney Jackson Lofgren said the circumstances are narrow.
“It really depends on what were the facts of the case,” he said. “So if an individual who, for whatever reason, was convicted both of DUI and refusal of the blood test, for those people the decision has little impact because they were independently convicted of the DUI. It would only be that person who was purely convicted of the refusal of blood that it would really impact.”
South Central District Presiding Judge Gail Hagerty declined to comment on Morel “since there will be an impact on other cases we’ll all be dealing with.”Trail of blood
Sen. Kelly Armstrong, R-Dickinson, said the state brought its refusal law into line with Birchfield last year. In 2013, the state criminalized refusal to submit to a chemical test. Armstrong also said, since 2013, the state has gotten “smarter” in its DUI penalties and programs, such as the 24/7 Sobriety Program.
It’s now rare to see blood draws for suspected drunken driving. Lofgren said maybe one in 30 DUIs involves a blood draw, mainly if there’s a warrant or if a suspect consents. Urine tests are even rarer, he added - maybe one in 100 DUI cases.
Bismarck Police Chief Dan Donlin said his department uses breath tests as much as possible, based on accessibility and cost. He said hospitals charged a high price for blood draws. Currently, if Bismarck police need to draw blood in a non-emergency, they coordinate with a sexual assault nurse examiner.
Morton County Sheriff Kyle Kirchmeier said his officers switched from blood to breath testing after the Legislature updated the state’s refusal law in 2017. He said blood tests were quicker to administer and easier than the blowing involved in breath tests for intoxicated persons.
Herbel said, from a prosecutor or police perspective, blood or urine are generally preferred as more accurate or foolproof than breath testing.
North Dakota’s and Minnesota’s supreme courts referenced Birchfield in finding warrantless urine tests to be unconstitutional. The U.S. Supreme Court has not specifically addressed that issue. Lofgren noted the “highly intimate” and “embarrassing” nature of urinating in front of a police officer.
For now, it remains to be seen how many people may file for relief from their blood test refusal convictions after Morel.
"I would say this doesn't cover everything, but it gives a pretty good road map of the way the Supreme Court views it," Herbel said. "It was a well thought out decision."