974 N.W.2d 422
Wis.2022Background
- In 2017 Scott Forrett, already with five prior OWI convictions, was charged with OWI after an arrest; a 1996 temporary revocation of his driving privileges (for refusing a warrantless blood draw) had not resulted in an OWI conviction but was counted as a prior "offense."
- Because that revocation was counted, Forrett was charged with a seventh-offense OWI (Class F felony) under Wisconsin's graduated-penalty scheme; he pleaded guilty pursuant to a plea deal and received an 11-year bifurcated sentence (6 years initial confinement, 5 years extended supervision).
- Forrett moved post-conviction, arguing that counting a prior revocation for refusing a warrantless blood draw as an ‘‘offense’’ to enhance a later OWI sentence violates the Fourth Amendment as interpreted in North Dakota v. Birchfield and this court’s decision in State v. Dalton.
- The circuit court denied relief; the court of appeals reversed, holding that using a prior refusal-based revocation to increase a later OWI penalty impermissibly penalizes the exercise of a Fourth Amendment right and commuted Forrett’s conviction to a sixth-offense OWI for resentencing.
- The Wisconsin Supreme Court (majority) held the statutes facially unconstitutional to the extent they count prior, stand-alone revocations for refusing a warrantless blood draw as ‘‘offenses’’ for penalty enhancement, vacated the conviction, and remanded for further proceedings (modifying the court of appeals’ remedy to permit the parties to reconsider post-plea options).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Forrett) | Held |
|---|---|---|---|
| Whether Wis. Stat. §§ 343.307(1) and 346.65(2)(am) may count a prior revocation based on refusal of a warrantless blood draw as an "offense" for enhancing a later OWI sentence | The graduated-penalty scheme is a permissible recidivist/enhancement mechanism; counting revocations does not criminalize refusal and is analogous to other repeat-offender statutes | Counting a refusal-based revocation as an offense effectively imposes criminal penalties on the exercise of a Fourth Amendment right (refusing a warrantless blood draw), which Birchfield and Dalton prohibit | Held unconstitutional to the extent the statutes count prior, stand-alone revocations for refusing a warrantless warrantless blood draw as offenses for increasing criminal penalties |
| Remedy: whether the conviction should be commuted to sixth-offense OWI or vacated and the plea revisited | The plea agreement should stand; enhanced sentence reflects valid counting rules | The plea bargain was premised on the defendant being treated as a seventh offender; invalid enhancer alters the benefit-of-the-bargain and the parties should be allowed to reconsider | The court modified the court of appeals’ remedy: vacate the judgment of conviction and remand so the State and defendant can determine next steps (plea agreement cannot be enforced as written because the statutory basis changed) |
Key Cases Cited
- North Dakota v. Birchfield, 579 U.S. 438 (warrantless blood draws cannot be criminally punished; refusal protected)
- State v. Dalton, 383 Wis. 2d 147 (Wis. Supreme Court applying Birchfield to invalidate increased punishment tied to refusal in the same incident)
- Harman v. Forssenius, 380 U.S. 528 (state may not impose penalties that deter exercise of constitutional rights)
- Buckner v. State, 56 Wis. 2d 539 (constitutional principle that rights cannot be penalized)
- Missouri v. McNeely, 569 U.S. 141 (blood draws implicate heightened Fourth Amendment concerns)
- Ingalls v. State, 48 Wis. 647 (recidivist/enhancement rationale: increased punishment for later offense)
- United States v. Rodriguez, 553 U.S. 377 (recidivist enhancements punish the current offense, not prior convictions)
- Nichols v. United States, 511 U.S. 738 (enhancement statutes do not alter penalty for earlier conviction)