[¶ 1] After being arrested for driving under the influence, Jonathan Kordonowy refused to submit to a chemical blood test. The State charged Kordonowy with driving under the influence and with refusing to submit to chemical testing in violation of N.D.C.C. § 39-08-01. Kordonowy moved to dismiss the refusal charge, arguing N.D.C.C. § 39-08-01(l)(e) was unconstitutional under the Fourth Amendment and N.D. Const, art. I, § 8. The district court denied Kordonowy’s motion and a jury found him guilty of refusal to submit to a chemical test and not guilty of driving under the influence.

[¶ 2] In State v. Kordonowy, 2015 ND 197, ¶ 12, 867 N.W.2d 690, we concluded the criminal refusal statute was not unconstitutional under the Fourth Amendment or N.D. Const, art. I, § 8, and our decision in 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 Birchfleld’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 Kordonowy’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 affirming Kordonowy’s conviction for refusal to submit to a chemical blood test to the extent it is inconsistent with Birchfield v. North Dakota, and we remand to the district court with directions to dismiss with prejudice the criminal refusal charge.