State v. Webster, 2017 ND 75

Officer stopped Webster in July 2014 for traffic violations; observed signs consistent with alcohol impairment and administered field sobriety tests.
Webster refused a preliminary onsite breath screening after an implied-consent advisory and, after arrest, refused a requested warrantless blood test.
State charged Webster with DUI under N.D.C.C. § 39-08-01 alleging either impairment or refusal of chemical tests; district court denied Webster’s pretrial motion to dismiss.
First jury deadlocked; at second trial the court instructed the jury a guilty verdict could be based on (1) driving under the influence, (2) refusal of an onsite screening test, or (3) refusal of a blood test after arrest; Webster objected orally to an instruction about when an officer may request an onsite breath test.
Jury asked whether law enforcement may legally request a breathalyzer; court replied to follow instructions; jury returned a general guilty verdict.
On appeal the court applied Birchfield and reversed because criminalizing refusal of a warrantless blood test incident to arrest is unconstitutional and the general verdict made it impossible to determine whether the conviction rested on that invalid theory.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether instructing the jury that refusal of a warrantless blood test after arrest was a basis for DUI conviction was permissible	Instruction was harmless error because evidence showed Webster refused the onsite breath test and jury could have convicted on that ground	Birchfield prohibits criminalizing refusal of warrantless blood tests incident to arrest; including that alternative in a general verdict was plain error affecting substantial rights	Reversed — Birchfield renders refusal of a warrantless blood test non-cognizable; general verdict error was not harmless beyond a reasonable doubt; remand for new trial
Whether the jury should have been instructed on what officer observations are required before requesting an onsite breath screening test under § 39-20-14(1)	Court properly declined; legal sufficiency of officer’s information is a pretrial legal question for suppression, not a jury question	Jury should be instructed on statutory prerequisites (reasonable belief of violation and that the officer formulated an opinion the driver’s body contained alcohol) because those affect the criminal refusal charge	Affirmed — requirements to request an onsite breath test are legal questions for pretrial resolution, not elements to be instructed to the jury

Birchfield v. North Dakota, 136 S. Ct. 2160 (U.S. 2016) (warrantless blood tests incident to arrest violate Fourth Amendment; refusal to submit to such tests cannot be criminalized)
Dominguez v. State, 840 N.W.2d 596 (N.D. 2013) (general verdict including a non-cognizable theory requires harmless-error analysis)
Guttormson v. State, 869 N.W.2d 737 (N.D. 2015) (jury instruction enumerating elements for refusal of onsite screening test and sufficiency of circumstantial evidence)
State v. Boehm, 849 N.W.2d 239 (N.D. 2014) (statutory standard for when an officer may request a preliminary onsite breath test)