
    2016 ND 186
    STATE of North Dakota, Plaintiff and Appellant v. Jayden Rae WASHBURN, Defendant and Appellee.
    No. 20140154.
    Supreme Court of North Dakota.
    Sept. 15, 2016.
    Burleigh County State’s Attorney’s Office, Bismarck, N.D., for plaintiff and appellant.
    Lloyd C. Suhr and Jackson J. Lofgren, Bismarck, N.D., for defendant and appel-lee.
    Attorney General’s Office, Bismarck, N.D., for amicus curiae North Dakota Attorney General.
    Justin J. Vinje, Bismarck, N.D., for ami-cus curiae North Dakota Association of Criminal Defense Lawyers.
    Chad R. McCabe, Bismarck, N.D., and Donald J. Ramsell, Wheaton, IL, for ami-cus curiae National College for DUI Defense, Inc.
   PER CURIAM.

[¶ 1] Jayden Rae Washburn was arrested for driving under the influence and refused to submit to a warrantless chemical breath test. The State charged Wash-burn with refusing to submit to a chemical test in violation of N.D.C.C. § 39-08-01(l)(e). The district court dismissed the prosecution, concluding the State could not constitutionally criminalize a driver’s exercise of the right to refuse to submit to a warrantless chemical test.

[¶ 2] In State v. Washburn, 2015 ND 8, 861 N.W.2d 173, we summarily reversed the dismissal in light of State v. Birchfield, 2015 ND 6, 858 N.W.2d 302.

[¶3] In Birchfield v. North Dakota, — U.S.-, 136 S.Ct. 2160, 2184-85, 195 L.Ed.2d 560 (2016), the United States Supreme Court held the Fourth Amendment permits warrantless breath tests incident to a lawful arrest for drunk driving, but absent another exception to the warrant requirement, does not permit warrantless blood tests incident to a lawful arrest for drunk driving. The United States Supreme Court concluded that in Birchfield’s prosecution for refusing a warrantless blood test incident to his arrest, the refused blood test was not justified as a search incident to his arrest and reversed his conviction because he was threatened with an unlawful search. Id. at 2186.

[¶ 4] The United States Supreme Court granted Washburn’s petition for writ of certiorari and remanded to this Court for consideration in light of Birch-field v. North Dakota. We vacate our opinion reversing the dismissal of the charge against Washburn to the extent it is inconsistent with Birchfield v. North Dakota. We remand to the district court for any further proceedings as may be deemed necessary.

[¶ 5] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, DALE V. SANDSTROM, DANIEL J. CROTHERS, and LISA FAIR McEVERS, JJ., concur.  