State v. Kordonowy, 2015 ND 197

Jonathan Kordonowy was charged with DUI and with criminal refusal to submit to a chemical test under N.D.C.C. § 39-08-01(1)(e).
He moved to dismiss the refusal charge arguing the statute is unconstitutional under the Fourth Amendment and N.D. Const. art. I, § 8, and is unconstitutionally vague; the State and Attorney General opposed dismissal.
The district court denied the motion to dismiss; the case proceeded to a jury trial.
Kordonowy requested a jury instruction stating a person has a right to refuse chemical testing; the court refused the instruction.
The jury acquitted him of DUI but convicted him of refusing the chemical test; Kordonowy appealed challenging the statute’s constitutionality, vagueness, and the refusal-to-instruct ruling.
The Supreme Court affirmed, rejecting his Fourth Amendment and state-constitution arguments, finding the statute not unconstitutionally vague, and concluding the requested jury instruction misstated the law.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Constitutionality under Fourth Amendment / N.D. Const. art. I, § 8	State: statute valid; implied-consent scheme is constitutional and reasonable to deter drunk driving	Kordonowy: statute criminalizes exercise of Fourth Amendment right to refuse testing; warrant required	Court: statute constitutional; follows Birchfield — implied consent and consequences are permissible
State constitution provides greater protection than Fourth Amendment	State: no separate showing; ND Const. art. I, § 8 is nearly identical to Fourth Amendment	Kordonowy: ND constitution affords greater protection and supports dismissal	Court: defendant failed to show ND Constitution provides greater protection; issue not further addressed
Vagueness (conflict between right to refuse and criminalization)	State: statutes read together give adequate warning and identify consequences; advisory informs drivers	Kordonowy: statutory scheme conflicts (right to refuse vs criminal penalty), lacks clear notice	Court: statutes construed together are not vague; advisory and case law clarify consequences
Jury instruction on a "right to refuse" chemical test	State: proper instructions correctly state law; requested wording would mislead	Kordonowy: entitled to instruction that he had a right to refuse as a defense	Court: refusal to give the proffered instruction was proper because it misstated law; right to refuse is conditional and consequences must be included

State v. Birchfield, 858 N.W.2d 302 (N.D. 2015) (upholding criminal-refusal statute; implied-consent scheme constitutional)
State v. Murphy, 527 N.W.2d 254 (N.D. 1995) (rejected an instruction stating an absolute right to refuse; instruction incomplete)
State v. Romero, 830 N.W.2d 586 (N.D. 2013) (standard for reviewing jury instructions)