MADISON, Wis. (CN) — The Wisconsin Supreme Court on Friday said it is unconstitutional to count revocation of driving privileges for refusing a warrantless blood draw as a criminal offense contributing to increased penalties for multiple drunken driving convictions, which the state’s legal scheme for OWI offenses currently allows.
In a 4-3 majority opinion penned by Justice Rebecca Dallet, the high court said the part of Wisconsin’s graduated-penalty scheme for OWI offenses that allows for previous revocations over refusing a blood test to be counted as criminal offenses in determining the penalty for multiple-OWI crimes is unconstitutional “because it threatens with criminal penalties those who exercise their Fourth Amendment right to be free from unreasonable searches,” agreeing with the defendant in the underlying case.
The defendant, Scott Forrett, was arrested in 2017 and charged with what would have been his sixth OWI. But he also had his driving privileges temporarily revoked in 1996 because he refused a warrantless blood draw after police stopped him on suspicion of OWI, though he was never convicted.
Despite the lack of a conviction, Wisconsin’s scheme for repeat OWI offenders counted the 1996 revocation as a prior offense for the purposes of figuring out appropriate charges and punishments for subsequent OWIs. Because of this, Forrett was charged with a seventh-offense OWI in 2017, a Class F felony carrying stiffer penalties than the Class G felony he would have been charged with had the revocation not been counted.
As part of a deal dismissing other charges, including for possession of controlled substances and drug paraphernalia, Forrett agreed to plead guilty to the seventh-offense OWI and a Waukesha County Circuit Court judge meted out an 11-year sentence split into six years of initial confinement and five years of extended supervision.
After the circuit court tossed Forrett’s post-conviction motion challenging the constitutionality of counting his 1996 revocation as a criminal offense, the Wisconsin District II Court of Appeals reversed on the grounds that increasing a criminal penalty for a warrantless blood draw refusal revocation “impermissibly burdens or penalizes a defendant’s Fourth Amendment right to be free from an unreasonable warrantless search” and ordered Forrett to be resentenced for a sixth-offense OWI.
The appeals court, and Dallet in turn, cited the U.S. Supreme Court’s Birchfield v. North Dakota precedent, which allows police to conduct warrantless breath tests but not warrantless blood tests of drunken drivers, in part because of the much more intrusive nature of blood tests.
And although Forrett’s situation differs from Birchfield and a similar Wisconsin Supreme Court case in that Forrett’s refusal and the criminal penalty for that refusal occurred in separate cases, the state supreme court majority felt it was still unconstitutional to increase the criminal penalty for a separate, subsequent OWI over a prior refusal of a warrantless blood draw.
Dallet said “it is unconstitutional in all circumstances to threaten criminal penalties for refusing to submit to a warrantless blood draw,” rendering Wisconsin’s scheme for escalating OWI convictions unconstitutional because it threatens such penalties.
The supreme court modified the appeals court’s decision slightly, however, by remanding with instructions to vacate Forrett’s judgment of conviction and for the state and Forrett to consider next steps, instead of remanding specifically to commute Forrett’s conviction to a sixth-offense OWI and resentence him accordingly as the appeals court did.
In a dissenting opinion, Justice Brian Hagedorn felt the majority had deviated from what the law actually says as related to Birchfield, partially because Wisconsin imposes only a civil penalty for refusing a warrantless blood draw under implied consent statutes, not a criminal penalty.
Hagedorn, joined in his dissent by Justice Patience Roggensack and Chief Justice Annette Ziegler, felt Wisconsin’s graduated-penalty scheme for OWIs simply applies the well-worn principle of considering past conduct in a later criminal prosecution to determine proper punishment and does not actually criminally punish a defendant anew for past conduct.
“Thus, under binding law, the state is not criminally punishing Forrett for refusing a blood test back in 1996; rather, it is simply punishing him more harshly for his newest OWI conviction,” Hagedorn said, adding that “the majority misapplies Supreme Court precedent and in so doing, overrides the legislature’s decision to count prior revocations toward increased OWI penalties.”
Justices Ann Walsh Bradley, Rebecca Grassl Bradley and Jill Karofsky joined Dallet in the majority on Friday.
David Malkus, an attorney with the Wisconsin State Public Defender’s Milwaukee Appellate Office who represented Forrett, could not be immediately reached for comment on the court’s decision. Michael Sanders, the assistant attorney general who represented the state before the appeals court and supreme court, also could not be immediately reached.
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