from the District Court of Burleigh County, South Central
Judicial District, the Honorable David E. Reich, Judge.
L. Herbel, Bismarck, ND, for petitioner and appellant.
K. Steiner, Assistant State's Attorney, Bismarck, ND, for
respondent and appellee.
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.
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.
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
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