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Morel v. State

Supreme Court of North Dakota

June 5, 2018

Brandon Morel, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.

          Danny L. Herbel, Bismarck, ND, for petitioner and appellant.

          Derek K. Steiner, Assistant State's Attorney, Bismarck, ND, for respondent and appellee.

          OPINION

          VandeWalle, Chief Justice

         [¶ 1] Brandon Morel appealed from a district court order denying his application for post-conviction relief in which he asked the district court to vacate a criminal conviction for refusal to submit to a chemical test in 2014. We reverse, concluding Birchfield v. North Dakota, 136 S.Ct. 2160 (2016) applies retroactively to this case.

         I

         [¶ 2] In August 2014, Morel was arrested and cited for driving under the influence of intoxicating liquor and refusal to submit to a chemical test. Morel moved to dismiss the refusal charge on the basis that the refusal statute was unconstitutional. The district court ruled the refusal statute was not unconstitutional.

         [¶ 3] Prior to trial, the State moved to dismiss Morel's charge for driving under the influence, and elected to proceed to trial on the refusal charge. In November 2014, a jury found Morel guilty of refusing to submit to a chemical test. In December 2014, Morel appealed his refusal conviction to this Court, reasserting his constitutional argument about the refusal statute. See State v. Morel, 2015 ND 198, 870 N.W.2d 26. In August 2015, we summarily affirmed Morel's judgment under State v. Birchfield, 2015 ND 6, ¶ 19, 858 N.W.2d 302, rev'd, 136 S.Ct. 2160 (2016), and vacated, 2016 ND 182, ¶ 4, 885 N.W.2d 62.

         [¶ 4] In 2016, the Supreme Court of the United States announced its ruling in Birchfield that "motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense." Birchfield, 136 S.Ct. 2160, 2186 (2016).

         [¶ 5] In May 2017, Morel filed an application for post-conviction relief, asking the district court to vacate his criminal conviction for refusal to submit to a chemical test. Morel argued the Supreme Court's decision in Birchfield should be applied retroactively. The district court denied his application, finding Birchfield is a new federal rule of criminal procedure that does not apply retroactively.

         II

         [¶ 6] Morel argues the district court erred in denying his application for post-conviction relief and his conviction should be vacated because he was convicted under an unconstitutional statute.

         [¶ 7] The standard of review for an application for post-conviction relief is well-established:

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). 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 ...

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