Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Cynthia Feland, Judge.
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.
Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. I concur in the result. Daniel J. Crothers.
Lisa Fair 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.
[¶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.
[¶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: