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Attorneys seek relief under ND ruling for people convicted of refusing DUI blood test

Bismarck attorney Dan Herbel stands in front of the Morton County Courthouse in Mandan. Herbel in 2016 argued a case before the U.S. Supreme Court in which justices ruled it was unconstitutional to criminalize refusal of a warrantless blood draw due to the invasiveness of extracting blood. Mike McCleary / Bismark Tribune

Few people have apparently sought to vacate convictions for refusing warrantless DUI blood tests in the year since a North Dakota Supreme Court opinion offered an open but narrow door.

Defense attorneys involved in such cases hope past defendants can learn of the 2018 ruling, from a case called Morel, which found that a U.S. Supreme Court decision in a 2016 case called Birchfield applies retroactively. Birchfield's ruling found it unconstitutional to criminalize refusal of a warrantless blood draw due to the invasiveness of extracting blood. North Dakota criminalized DUI test refusal in 2013.

But the path to post-conviction relief is narrow, reliant on the facts of the case and applicable "in very limited circumstances," such as time of the conviction and the "legal landscape as it then existed," according to the Morel decision.

"I don't know if a lot of people are even aware that they have the option of vacating a prior conviction based upon these cases," said Bismarck attorney Dan Herbel, who argued in Birchfield and Morel. Birchfield originated in North Dakota and Minnesota from cases involving alcohol testing.

Relief for refusing a warrantless blood draw would be helpful for defendants accused of other DUI offenses, he added — essentially removing a "building block" of their criminal history that could contribute to elevated charges in the future.

Wahpeton-based attorney Jonathan Green said he's sent letters to people he can find who have convictions for refusing warrantless blood draws. But the process has been difficult, given how criminal cases are categorized in the state court system, he said.

He's received phone calls from about a dozen people and has filed petitions for about half. This month, judges vacated Burleigh County convictions for a Fargo woman and a Bismarck man for whom Green sought relief by citing Morel.

Green believes the state should be obligated to notify past defendants of their wrongful convictions, vacate the judgments and return court fees but has no vested interest to do so.

"The state has done nothing," Green said.

Aaron Birst, a former Cass County prosecutor and now executive director of the North Dakota State's Attorneys' Association, said if past defendants feel they have been wronged, they should consult an attorney, because prosecutors aren't actively looking over cases in which the law might have or has changed.

"As a rule, prosecutors of course want to do the absolute right thing and right every wrong," Birst said. "But it's impossible to know, going back in time, of which cases really fall within those parameters and which don't."

It's unclear how often Morel has been cited in lawsuits seeking post-conviction relief, but several throughout the state have succeeded.

State Court Administrator Sally Holewa said she has no way to tell how many lawsuits cite the ruling without delving into the cases' facts.

Burleigh County prosecutor Tessa Vaagen said only a handful of cases citing Morel have been filed in Burleigh County. She said more are likely to come in, but Morel only addresses narrow circumstances. Birst said cases citing Morel are likely to be a trickle rather than a flood.

Meanwhile, the State Crime Lab has seen fewer blood alcohol cases since Birchfield, according to minutes from May's meeting of North Dakota's Traffic Record Coordinating Committee. Blood and breath alcohol cases were about evenly matched before Birchfield, but in 2018, 403 cases were for blood and 4,300 were for breath.

Herbel said he's been contacted by attorneys in North Dakota, Minnesota and other states about DUI testing issues since Birchfield and Morel were handed down. He also is handling a few cases that cite Morel, while Birchfield continues to reverberate around the country.

The Minnesota Supreme Court in late 2018 ruled that Birchfield applies retroactively, like in Morel in North Dakota. But blood testing could remain an issue, such as in testing for marijuana DUIs.

"My guess is there are mini laboratories all around the country litigating this, and eventually that will probably be an issue at the United States Supreme Court," Herbel said.