from the District Court of Morton County, South Central
Judicial District, the Honorable Sonna M. Anderson, Judge.
L. Herbel, Bismarck, ND, for petitioner and appellant.
M. Koppy, Morton County States Attorney, Mandan, ND, for
defendant and appellee.
1] Russell Bruce Parshall appeals from the district
court's order denying his application for post-conviction
relief. Parshall petitioned the district court to vacate a
criminal conviction for refusal to submit to a blood test in
2014. We reverse and remand, concluding the district court
erred in its interpretation of the plea agreement.
2] On July 28, 2015 Parshall pled guilty to "Driving
Under the Influence N.D.C.C. § 39-08-01 (First Offense
Refusal)" by a N.D.R.Crim.P. 43 plea agreement.
Parshall's Rule 43 Change of Plea and Sentencing
Appearance Waiver listed the charge without the parenthetical
"(First Offense Refusal);" however, both the formal
plea agreement section of the document and the later criminal
judgment included the parenthetical.
3] Parshall timely applied for post-conviction relief,
arguing the United States Supreme Court's holding in
Birchfield v. North Dakota, 136 S.Ct. 2160 (2016),
was a retroactively applicable substantive rule of
constitutional law that prohibited the State from imposing
criminal liability for refusing a warrantless blood test. In
opposing Parshall's application the State argued the
factual basis in the plea agreement supported both general
driving while impaired and refusal to submit to the blood
test. The district court found Parshall entered a guilty plea
to the general charge of driving under the influence, not
"While the refusal to submit to a warrantless blood draw
is constitutionally protected activity and no longer supports
a criminal offense after Birchfield, the Court finds
that Parshall entered a plea to the general charge of Driving
Under the Influence. In addition to refusing the blood draw,
Parshall admitted to the factual basis of driving without
headlights or taillights at 1:00 a.m. on the city streets in
Mandan, Morton County, that the officer smelled a strong odor
of alcohol, that the defendant had slurred speech and
bloodshot, watery eyes, that the defendant had poor motor
function and could not walk without stumbling and that the
defendant failed each of the field sobriety tests. The
factual basis, as supplied by Parshall, supported a finding
that he was actually impaired by alcohol in addition to
refusing the blood test."
4] The district court declined to rule on the retroactivity
of Birchfield, 136 S.Ct. 2160 (2016): "The
Court need not make that ruling, as the Court finds that the
ruling in Birchfield made the statute regarding
conviction by refusal to provide a blood sample
unconstitutional from the moment of passage." Parshall
5] Our standard of review for denial of an application for
post-conviction relief is well-established.
"Post-conviction relief proceedings are civil in nature
and are governed by the North Dakota Rules of Civil
Procedure." Burke v. State, 2012 ND 169,
¶10, 820 N.W.2d 349.
"In post-conviction relief proceedings, a district
court's findings of fact will not be disturbed unless
they are clearly erroneous under N.D.R.Civ.P. 52(a). Cue
v. State, 2003 ND 97, ¶ 10, 663 N.W.2d 637. A
finding of fact is clearly erroneous if it is induced by an
erroneous view of the law, if it is not supported by the
evidence, or if, although there is some evidence to support
it, a reviewing court is left with a definite and firm
conviction that a mistake has been made. DeCoteau v.
State, 2000 ND 44, ¶ 10, 608 N.W.2d 240. Questions
of law are fully reviewable on appeal of a post-conviction
proceeding. Peltier v. State, 2003 ND 27, ¶ 6,
657 N.W.2d 238."
Greywind v. State, 2004 ND 213, ¶ 5, 689 N.W.2d
6] Two subsections of N.D.C.C. § 39-08-01(1) (2015)
apply in this case:
"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:
b. That person is under the influence of ...