June 29, 2022 – The Wisconsin Supreme Court has ruled that the state’s penalty scheme for operating while intoxicated (OWI) convictions is unconstitutional because it allows a penalty enhancement for a refusal to consent to a warrantless blood draw.
In State. Forrett, 2022 WI 37 (June 3, 2022), the supreme court held (4-3) that the penalty scheme ran afoul of U.S. Supreme Court precedent that prohibits imposing a criminal penalty for the blood draw refusal, because such a refusal is protected by the Fourth Amendment to the U.S. Constitution.
Justice Rebecca Dallet wrote the majority opinion, joined by Justice Ann Walsh Bradley, Justice Rebecca Grassl Bradley, and Justice Jill Karofsky. Justice Brian Hagedorn dissented, joined by Chief Justice Annette Ziegler and Justice Patience Roggensack.
In April 2017, the Waukesha County District Attorney charged Scott Forrett with his seventh offense OWI.
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
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Forrett’s six prior offenses included five OWI convictions and a 1996 revocation of his driving privileges imposed after he refused to consent to a warrantless blood draw. The blood draw refusal did not result in a conviction.
Because of the six prior offenses, the district attorney charged Forrett with a class F felony. The district attorney also charged Forrett with several drug and traffic charges.
In January 2018, Forrett pled guilty in exchange for the state dropping the drug and traffic charges. The circuit court sentenced him to six years of initial confinement and five years of extended supervision.
Reversal and Remand
Forrett filed for post-conviction relief.
He argued that under the U.S Supreme Court’s decision in North Dakota v. Birchfield, 579 U.S. 438 (2016) and the Wisconsin Supreme Court’s decision in State v. Dalton, 2018 WI 85, 383 Wis. 2d 147, 914 N.W.2d 120, it was unconstitutional to count the 1996 revocation as a criminal offense.
Without the 1996 revocation included, Forrett argued, he would have been charged with a class G felony, which carries a mandatory minimum of 18 months of initial confinement and a maximum confinement of five years.
By contrast, a class F felony is punishable by a mandatory minimum of three years of initial confinement and a maximum confinement of seven years and six months.
Including the 1996 revocation, Forrett argued, amounted to criminally punishing him for exercising his constitutional right to refuse the blood draw. The circuit court denied Forrett’s post-conviction motion.
The Wisconsin Court of Appeals reversed and reduced Forrett’s sentence to sixth-offense OWI, then remanded the case to the circuit court for resentencing. The state appealed.
Civil Converted to Criminal
In her opinion for the majority, Justice Dallet pointed out that the state’s OWI penalty scheme can, in cases like Forrett’s, convert a civil offense to a criminal one, “for no other reason than that [the convicted] previously refused to submit to a warrantless chemical test.”
She also pointed out that in Birchfield, the U.S. Supreme Court held that 1) the Fourth Amendment protects a person’s right to refuse a warrantless blood draw, and 2) “’a [s]tate may not impose a penalty upon those who exercise a right guaranteed by the Constitution.”
In Dalton, Dallet explained, the Wisconsin Supreme Court applied Birchfield in a case where the refusal to submit to a warrantless blood draw and the criminal penalty for the refusal arose in same case. That wasn’t so in Forrett’s case, Dallet acknowledged; but she concluded that that distinction was immaterial.
“Both cases rested on the idea that the state cannot criminalize the exercise of a constitutional right, and we see no reason why that rationale does not apply equally when the criminal penalty is imposed in a later case,” Justice Dallet wrote.
Constitutionally Protected Conduct?
The state argued that the OWI penalty scheme doesn’t directly impose a criminal punishment upon the prior exercise of a constitutional right. Rather, it merely considers such conduct for the purpose of adding to the punishment for a later crime.
But federal and state supreme court cases cited by the state to support that argument involved prior conduct that was not constitutionally protected.
“It is therefore permissible to punish a third-time bank robber more harshly than a first-time offender because there is no constitutional right to rob a bank,” Justice Dallet wrote.
That the increased criminal penalty was not imposed on Forrett as a result of refusing the blood draw was of no constitutional moment, Dallet explained.
“Whether the criminal punishment is immediate or delayed, the OWI statutes impermissibly allow the State to punish more severely an OWI offender who refused a warrantless blood draw ‘solely because he availed himself of one of his constitutional rights,’” Justice Dallet wrote.
Dallet then explained that the case must be remanded to the circuit court with instructions to vacate the judgment of conviction.
Majority Misreads Precedent
In his dissent, Justice Hagedorn argued that the majority had misinterpreted Birchfield.
The prosecution of Forrett, Hagedorn argued, “punishes him only for his new offense.”
“Counting prior offenses in calculating his sentence does not criminally punish Forrett for any of his prior conduct,” Justice Hagedorn wrote. “This is true when counting prior OWI convictions of a civil or criminal nature. And it is true of revocations, whether for speeding or for refusing to submit to a blood test … Nothing in Birchfield casts any doubt on these principles.”
Furthermore, argued Justice Hagedorn, the majority’ reliance on Dalton was misplaced, because in that case the defendant refused a blood test in the same incident that led to the OWI conviction.
“The majority seems to interpret Dalton as prohibiting any criminal penalty enhancements that are connected to a prior refusal to consent to a warrantless blood test,” Justice Hagedorn wrote.
“If this is what Dalton stands for, it was wrong. By expanding Dalton beyond the circumstances of the immediate OWI conviction, the majority adopts a legal rule that is unrecognizable from it supposed roots in Birchfield and irreconcilable with more than a century of precedent on penalty enhancement statutes.”