The Constitutionality of Revocation in OWI Cases
In April 2017, Scott Forrett was arrested for, and charged with, his 7th offense for Operating while Intoxicated. In the following court proceedings, the revocation of his refusal to submit to a warrantless blood test after his arrest in a prior conviction allowed for an increase in his sentence. Forrett was sentenced to 6 years of initial confinement and 5 years of extended supervision.
However, Forrett challenged the judgment of his conviction and the order denying him postconviction relief, claiming that the revocation of his refusal to the blood test after the arrest of his 6th OWI was unconstitutional and should not have been recalled to increase his present criminal penalty.
Forrett argued that the State’s use of his 6th OWI conviction to increase the criminal penalty for his latest OWI violated his Fourth Amendment constitutional right to be free from unreasonable searches under Birchfield and Dalton. He claimed that the Wisconsin Supreme Court’s holding in Dalton should be upheld in his case. In accordance with Birchfield, Dalton ruled that a sentencing court cannot use a refusal to explicitly increase the confinement portion of a sentence on an OWI in the same case. Moreover, the State cannot use a refusal to enhance the available confinement portion for the sentencing on a subsequent OWI.
To counter Forrett’s opposition to his sentence, the State argued that imposing criminal penalties for a refusal and using a refusal conviction for counting purposes, to enhance the possible penalty for a subsequent and unrelated OWI conviction, are not the same. The State claimed this conclusion was held in statute by Birchfield and Dalton.
However, the Court of Appeals agreed with Forrett in the unconstitutionality of using a refusal from a prior arrest to enhance criminal penalty on a subsequent case. It characterized the United States Supreme Court’s holding in Birchfield as: “pursuant to Birchfield, criminalizing refusal to a warrantless blood draw with criminal penalties exceeds the defendant’s implied consent, and thus, impermissibly burdens or penalizes a defendant’s Fourth Amendment right to be free from an unreasonable warrantless search.” Forrett, ¶ 11. The Court of Appeals characterized the Wisconsin Supreme Court’s holding in Dalton as “imposing ‘criminal penalties’ for a refusal is not lawful under the Fourth Amendment.” Forrett, ¶ 12. The court emphasized that “Dalton and Birchfield clearly stated that imposing ‘criminal penalties’ on defendants who refuse to submit to a warrantless blood test are outside the ‘limit’ of the Fourth Amendment’s prohibition against unreasonable searches.” Forrett, ¶ 12.
Moreover, the Fourth Amendment to the United States Constitution and article 1, section 11 of the Wisconsin Constitution guarantee that persons shall be secure from unreasonable searches and seizures. In Birchfield, the Supreme Court analyzed implied consent laws under the Fourth Amendment and specifically, the constitutionality of warrantless searches—blood draws. The Court held that a refusal to submit to a blood test without a warrant can be the basis for a civil penalty—revocation—but it cannot be the basis for a separate criminal charge and penalties.
So, why is the publication of Scott Forrett’s case important to present and future criminal cases in Wisconsin?
This case was recommended for publication, as it amends how Wisconsin attorneys should approach OWI cases, and once it is published, it will become the law. Therefore, once the Forrett case is published, Wisconsin attorneys must act accordingly, pursuant to the case’s result.
The Forrett case impacts how Wisconsin OWI cases should be prosecuted. Following the case’s publication, county and municipal prosecutors will no longer be allowed to dismiss OWI charges and allow a blood test refusal from a prior charge to stand in an open case. Thus, prosecutors must revisit their files and determine whether any OWI charges in their open cases are enhanced due to a prior refusal to submit a blood test. If any of their open cases contain these measures, those refusals may no longer be counted, and the charges must be amended accordingly. The same practice must be followed for all future cases.