State v. Scott William Forrett, 2019AP1850-CR, 4/28/21, District 3 (recommended for publication); case activity (including briefs)

Wisconsin permits a driver’s prior refusal to submit to a warrantless blood test as a criminal penalty enhancer for a subsequent OWI. In an open and shut opinion that is recommended for publication, the court of appeals just declared that statutory scheme unconstitutional based on Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), and State v. Dalton, 2018 WI 85, 383 Wis. 2d 147, 914 N.W.2d 120.

Under §343.305(2), a court may revoke the license of a driver who refuses to submit a warrantless chemical test of his breath, blood, or urine after driving while impaired. Wisconsin’s escalating penalty scheme for successive OWI allows a circuit court to count that revocation as a prior offense. See §§346.65(2), 343.307(1)(f), and 343.305(10).

In 2017, Forrett pled to OWI 7th. The circuit court used his 1996 revocation for refusal to submit to a warrantless blood draw to increase his sentence from that allowable for an OWI 6th offense (Class G felony) to that allowable for an OWI 7th (Class F felony), which carries a higher minimum and maximum penalty.

The circuit court sentenced Forrett to 11 years of prison (6 years initial confinement and 5 years of extended supervision). That sentence exceeded the 10-year maximum allowed for an OWI 6th at that time. See § 346.65(2)(am)5 and § 346.65(2)(am)6 (2015-2016).

In Birchfield, SCOTUS held that the refusal to submit to a blood test without a warrant can be the basis for a civil remedy–like revocation–but it cannot be the basis for a separate criminal charge and penalties. Birchfield, 136 S. Ct. at 2185-86. See our post here.

Relying on Birchfield, SCOW likewise recently held that imposing criminal penalties for the refusal to submit to a blood test is not lawful under the 4th Amendment. Dalton, 383 Wis. 2d 147, ¶¶58, 59, 60. See our post here.

Noting that it is bound by Birchfield and Dalton, the court of appeals has now declared Wisconsin’s statutory criminal penalty enhancer scheme unconstitutional:

An increased penalty for the warrantless blood draw refusal revocation is an increased penalty—regardless whether it takes place in the same proceeding or a later proceeding, it impermissibly burdens or penalizes a defendant’s Fourth Amendment right to be free from an unreasonable warrantless search. Thus, revocations for warrantless blood draws, as set forth in WIS. STAT. §§ 343.307(1)(f) and 343.305(10), cannot be included in the escalating penalty structure of WIS. STAT. § 346.65(2)(am). Here, because Forrett’s sentence of eleven years exceeds the statutory maximum for 6th offense OWI, we reverse and remand for further sentencing proceedings commuting Forrett’s conviction to a 6th offense OWI and
resentencing accordingly. Opinion, ¶19.

Note: The court of appeals holding is limited to refusals for warrantless blood draws. It says nothing about refusals of other kinds of warrantless chemical tests like breath and urine.

This decision should apply to non-final cases that are still under direct review. Griffith v. Kentucky, 479 U.S. 314 (1987). But query whether it applies to OWI cases that are already final? The answer to that question lies in the application of Teague v. Lane, 489 U.S. 288, 311 (1989). Teague holds that when a case establishes a new rule it is generally not retroactive unless it is “substantive” or announces a “watershed rule of criminal procedure.”