In 1996, the state revoked Scott Forrett’s driver’s license under Wis. Stat. § 303.305(10) because he refused a blood test for alcohol. Under the state’s statutory scheme of progressive punishment for OWIs, that revocation counts the same as a prior conviction for drunk driving would. The state supreme court now holds this statutory scheme unconstitutional, saying it imposes increased criminal penalties on those who assert their Fourth Amendment right to refuse a warrantless blood draw. This means that Forrett’s conviction in the case before the court–for an OWI from 2017–is a sixth, not a seventh, offense.
The four-justice majority draws its reasoning from several sources, but the most important one is Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). In that case, SCOTUS held that a blood draw to test for alcohol (as opposed to a breath test) was sufficiently intrusive that it could not be justified as a search incident to arrest. Birchfield also held that although Fourth Amendment does not forbid a state to impose civil consequences for refusing a blood draw, it does outlaw criminal punishment for the act of refusal.
Wisconsin’s system of escalating punishment for each subsequent drunk-driving offense is laid out in Wis. Stat. §§ 346.65(2) and 343.307(1). Sec. 343.307(1) enumerates those events that you might call a “prior conviction” in determining what number offense a particular person is on, and most of these events are, in fact, convictions. The exceptions are in § 343.307(2) (e) & (f): they are license revocations under § 303.305(10) for refusing a chemical test, and non-Wisconsin license revocations or suspensions imposed for the same reason.
The majority holds that these suspensions–when entered for refusing a blood test only, it’s important to keep in mind–cannot count as “priors” consistent with the Fourth Amendment. Its analysis is straightforward: Birchfield forbids imposing criminal punishment for such refusals, and because priors increase the maximum (and minimum) sentences for a given drunk-driving offense, they impose additional criminal punishment. State v. Dalton, 2018 WI 85, 383 Wis. 2d 147, 914 N.W.2d 120, has already held that a judge cannot sentence a person more harshly because he or she refused a blood draw in the case that’s being sentenced; the court now says the result is the same when that harsher sentence comes by operation of statute in a later case. (¶11). Because Forrett’s plea to the seventh offense was part of a larger plea deal, SCOW vacates the entire deal and remands for the parties to “consider their next steps” (rather than simply commuting the excess sentence, as the court of appeals had). (¶19).
An important caveat: the civil penalty of license revocation for a refusal very often arises out of the same incident that also leads to a conviction for OWI or PAC. Wis. Stat. § 346.65(2) says that multiple countable events arising out of the same occurrence or incident count as only one prior. So a person who happens to have a revocation for refusing a blood test that also led to an OWI or a PAC doesn’t benefit from this decision. Only a defendant who has a revocation not associated with a conviction stands in a better position.
Justice Hagedorn, joined by Justices Zeigler and Roggensack, dissents. He argues that under double-jeopardy rulings, later offenses whose sentences are enhanced by prior convictions are lawful because all of the punishment is punishment for the latter offense (rather than being a second punishment for the first). Thus, he concludes, even though a previous refusal (that is, the assertion of a constitutional right) results in a greater penalty at a later date, that penalty is not really “punishment” for the assertion of the right.
It’s ironic, given the substance of his argument, that Hagedorn accuses the majority of “pulling a line from an opinion and wrongly applying it to an entirely different sort of case and claim.” (¶29). At any rate, the dissent’s facile analogy proves far too much. Can it really be that a legislature (or a judge) is free to increase a person’s criminal punishment because that person has exercised a constitutional right–but only if that exercise occurred before the criminal case began? And does this theory apply to all constitutional rights? May a judge sentence a person more harshly because the person once wrote a letter to the editor criticizing that judge? Or because the person, in an earlier case, asserted the right to an attorney? Or because the person was once a lawful gun owner? If not, why not?