2021 WI App 31
Wis. Ct. App.2021Background
- In April 2017 Scott Forrett was arrested for OWI and charged as a seventh-offense OWI because the prosecutor counted a 1996 license revocation based on his refusal to submit to a warrantless blood draw.
- Forrett pled guilty; the revocation-based enhancement produced an 11-year sentence (6 years initial confinement + 5 years extended supervision), exceeding the maximum for a sixth-offense OWI.
- Forrett moved postconviction, arguing that using his prior refusal to enhance punishment violated the Fourth Amendment under Birchfield v. North Dakota and State v. Dalton; he also alleged ineffective assistance for counsel’s failure to challenge the enhancement.
- The circuit court denied relief, distinguishing civil revocation/evidentiary consequences from criminal penalties.
- The court of appeals reversed: relying on Birchfield and Dalton, it held that counting a prior revocation for refusal to submit to a warrantless blood draw to increase criminal penalties is unconstitutional and remanded for resentencing as a sixth-offense OWI.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prior license revocation for refusal to submit to a warrantless blood draw may be "counted" to increase the criminal penalty for a subsequent OWI | The State: counting the prior revocation does not impose a criminal penalty for the refusal; it reflects recidivism/seriousness and is comparable to evidentiary use or a civil sanction | Forrett: counting the prior refusal effectively punishes a refusal to a warrantless blood draw and thus imposes a criminal penalty in violation of the Fourth Amendment per Birchfield and Dalton | Court: Held unconstitutional to include revocations for warrantless blood-draw refusals in the escalating OWI penalty scheme; reversed and remanded for resentencing as a sixth-offense OWI |
Key Cases Cited
- Birchfield v. North Dakota, 136 S. Ct. 2160 (refusal to submit to a warrantless blood draw may yield civil penalties/evidentiary consequences but cannot be criminalized)
- State v. Dalton, 383 Wis. 2d 147 (Wis. 2018) (lengthened criminal sentence imposed solely because defendant refused a warrantless blood draw is unlawful under Birchfield)
- State v. Carter, 330 Wis. 2d 1 (Wis. 2010) (describing Wisconsin scheme that counts prior convictions and revocations in determining OWI penalty)
- State v. Levanduski, 393 Wis. 2d 674 (Ct. App. 2020) (distinguishing permissible evidentiary use of refusals from impermissible criminal penalties)