2022 WI 37
SUPREME COURT OF WISCONSIN CASE NO.: 19AP1850-CR
COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Scott William Forrett, Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 398 Wis. 2d 371,961 N.W.2d 132 PDC No: 2021 WI App 31 - Published
OPINION FILED: June 3, 2022 SUBMITTED ON BRIEFS: ORAL ARGUMENT: February 17, 2022
SOURCE OF APPEAL: COURT: Circuit COUNTY: Waukesha JUDGE: Michael J. Aprahamian
JUSTICES: DALLET, J., delivered the majority opinion of the court, in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and KAROFSKY, JJ., joined. HAGEDORN, J., filed a dissenting opinion, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant there was a brief and oral argument by David Malkus, assistant state public defender.
For the plaintiff-respondent-petitioner there were briefs filed by Michael C. Sanders, assistant attorney general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Michael C. Sanders, assistant attorney general. An amicus brief was filed by Douglas Hoffer, deputy city attorney, with whom on the brief was Stephen C. Nick, city attorney, for the City of Eau Claire.
2 2022 WI 37 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2019AP1850-CR (L.C. No. 2017CF603)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner, FILED v. JUN 3, 2022
Scott William Forrett, Sheila T. Reiff Clerk of Supreme Court
Defendant-Appellant.
DALLET, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and KAROFSKY, JJ., joined. HAGEDORN, J., filed a dissenting opinion, in which ZIEGLER, C.J., and ROGGENSACK, J., joined.
REVIEW of a decision of the court of appeals. Affirmed as
modified and remanded.
¶1 REBECCA FRANK DALLET, J. Scott Forrett was convicted
of his seventh offense for operating while intoxicated (OWI).
Counted as one of the six prior offenses was a 1996 temporary
revocation of his driving privileges for refusing to submit to a
warrantless blood draw. That led to him receiving a longer
sentence than he could have received had the revocation not been counted as an offense. Forrett asserts that this aspect of No. 2019AP1850-CR
Wisconsin's graduated-penalty scheme for OWI offenses is
unconstitutional because it threatens with criminal penalties
those who exercise their Fourth Amendment right to be free from
unreasonable searches. We agree. We conclude that under the
U.S. Supreme Court's decision in North Dakota v. Birchfield, 579
U.S. 438 (2016), and our decision in State v. Dalton, 2018
WI 85, 383 Wis. 2d 147, 914 N.W.2d 120, Wisconsin's OWI
graduated-penalty scheme is unconstitutional to the extent it
counts prior revocations for refusing to submit to a warrantless
blood draw as offenses for the purpose of increasing the
criminal penalty.
I
¶2 In 2017, when Scott Forrett was arrested and charged
with OWI, he had five previous OWI convictions. He also had his
driving privileges temporarily revoked in 1996 because he had
refused to consent to a warrantless blood draw after the police
stopped him on suspicion of OWI. See Wis. Stat. § 343.305(2) (2019–20) (authorizing the police to request that a driver
submit to a chemical test of her breath, blood, or urine).1 That
encounter did not result in an OWI conviction. Nevertheless,
under Wisconsin's graduated-penalty scheme for repeat-OWI
offenders, Forrett's 1996 revocation counts as a prior "offense"
for the purposes of determining the appropriate charge and
punishment for subsequent OWIs. See Wis. Stat.
1All subsequent statutory references are also to the 2019– 20 version.
2 No. 2019AP1850-CR
§§ 346.65(2)(am), 343.307(1). Thus, in 2017, Forrett was
charged with his seventh OWI offense, a Class F felony. See
Wis. Stat. § 346.65(2)(am)6. He was also charged with
possession of a controlled substance, possession of drug
paraphernalia, failure to install an ignition-interlock device,
operating a vehicle with a prohibited blood-alcohol content, and
driving with a revoked license. The State agreed to dismiss
those charges in exchange for Forrett pleading guilty to the
seventh-offense OWI. Forrett accepted that deal and pleaded
guilty, and the circuit court imposed an 11-year sentence,
bifurcated as six years of initial confinement and five years of
extended supervision.2 See Wis. Stat. § 973.01.
¶3 Forrett sought post-conviction relief, arguing that
under Birchfield and Dalton, it was unconstitutional to count as
a criminal offense his 1996 revocation for refusing to submit to
a warrantless blood draw.3 He pointed out that but for his 1996
revocation, he would have been charged with a Class G felony,
which carries with it a mandatory minimum of 18 months initial
The Honorable Michael J. Aprahamian of the Waukesha County 2
Circuit Court presided over Forrett's conviction and sentencing. The Honorable Brad D. Schimel presided over the post-conviction proceedings.
A person's license can be revoked for many other reasons, 3
such as committing a homicide or exceeding the speed limit by more than 25 miles per hour. See, e.g., Wis. Stat. §§ 343.30– .32. The only basis for revocation at issue here is refusing to submit to a warrantless blood draw. Thus, throughout this opinion, we use "revocation" as a shorthand for a "revocation for refusing to submit to a warrantless blood draw." Our conclusions pertain only to such revocations and we do not address revocations for any other purpose.
3 No. 2019AP1850-CR
confinement and a maximum confinement period of five years. See
Wis. Stat. §§ 346.65(2)(am)5, 973.01(2)(b)7. He was charged,
however, with a Class F felony, which is punishable by a
mandatory minimum of three years of initial confinement and a
maximum confinement period of seven years and six months. See
Wis. Stat. §§ 346.65(2)(am)6., 973.01(2)(b)6m. Forrett argued
that this penalty structure is unconstitutional because it
threatens to criminally punish people who exercise their Fourth
Amendment right to refuse a warrantless blood draw. The circuit
court denied Forrett's post-conviction motion, reasoning that
the OWI-penalty statutes do not "punish him for directly
exercising some constitutional right[;] rather, [the 1996
revocation] simply . . . affects the penalty structure relative
to his conduct."
¶4 The court of appeals reversed on the grounds that
counting prior revocations as "offenses" under Wis. Stat.
§§ 343.307(1)(f) and 343.305(10) "impermissibly . . . penalizes
a defendant's Fourth Amendment right to be free from an unreasonable warrantless search." State v. Forrett, 2021 WI
App 31, ¶19, 398 Wis. 2d 371, 961 N.W.2d 132. In doing so, the
court of appeals distinguished between using one's refusal to
submit to a warrantless blood draw as evidence of criminal
liability for OWI in the same case, which is constitutionally
permissible, and using a prior refusal to increase a defendant's
criminal penalty for a subsequent OWI, which it held is improper
under Birchfield and Dalton. Id., ¶¶18–19. Accordingly, the court of appeals commuted Forrett's conviction to a sixth- 4 No. 2019AP1850-CR
offense OWI and remanded the cause to the circuit court for
resentencing. Id., ¶19. The State appealed.
II
¶5 Whether a statute is unconstitutional is a question of
law that we review de novo. E.g., State v. Wood, 2010 WI 17,
¶15, 323 Wis. 2d 321, 780 N.W.2d 63. A statute is facially
unconstitutional when it "cannot be enforced under any
circumstances." E.g., Serv. Emps. Int'l Union, Local 1 v. Vos,
2020 WI 67, ¶92, 393 Wis. 2d 38, 946 N.W.2d 35 (quoting another
source). Forrett's constitutional challenge requires us to
interpret several statutes, which is also a question of law
subject to de novo review. E.g., State v. Matthews, 2021 WI 42,
¶7, 397 Wis. 2d 1, 959 N.W.2d 640.
III
¶6 A few constitutional principles lie at the foundation
of our analysis. The first is a person's right under the Fourth
Amendment to refuse "unreasonable searches." U.S. Const. amend. IV; see also Birchfield, 579 U.S. at 455 (a chemical test of a
person's breath or blood is a "search"). Second is that
warrantless searches are "per se unreasonable," unless some
exception to the Fourth Amendment's warrant requirement applies.
E.g., State v. Matejka, 2001 WI 5, ¶17, 241 Wis. 2d 52, 621
N.W.2d 891. And third is that it has "long been established
that a [s]tate may not impose a penalty upon those who exercise a right guaranteed by the Constitution," such as the right to
5 No. 2019AP1850-CR
refuse a warrantless, unreasonable search. See Harman v.
Forssenius, 380 U.S. 528, 540 (1965); Buckner v. State, 56
Wis. 2d 539, 550, 202 Wis. 2d 406 (1972). With those principles
in mind, we turn to Forrett's challenge to the constitutionality
of the OWI statutes.
A
¶7 Wisconsin penalizes OWI offenders under a graduated-
penalty system. A person's first OWI offense is generally a
civil infraction. See Wis. Stat. § 346.65(2)(am)1. Subsequent
offenses are criminal and, depending on how many prior offenses
a person has, may constitute a felony punishable by up to 10
years of initial confinement and 5 years of extended
supervision. See Wis. Stat. §§ 346.65(2)(am)7. (a person guilty
of 10 or more OWI offenses is guilty of a Class E felony),
939.50(3)(e). Per statute, a person's total number of OWI
offenses is determined by counting not only OWI convictions but
also "suspensions or revocations" of a person's driving privileges resulting from a "refusal to submit to chemical
testing," provided the refusal and the conviction do not
"aris[e] out of the same incident or occurrence." See Wis.
Stat. §§ 343.307(1)(e), (f); 346.65(2)(am)2.–7. Thus, a prior
revocation that is not tied to an OWI conviction nevertheless
threatens to increase the criminal penalties that may be imposed
for a subsequent OWI conviction. See generally Wis. Stat.
§ 346.65(2)(am). For example, take an individual who has no prior OWI convictions but who, in a prior, separate incident
6 No. 2019AP1850-CR
that did not result in a conviction, is revoked for refusing to
submit to a chemical test. If, in the current incident, she is
convicted of OWI, her prior revocation increases her penalty
from a civil offense to a criminal one——for no reason other than
that she previously refused to submit to a warrantless chemical
test. See Wis. Stat. § 346.65(2)(am)2.
¶8 The OWI statutes treat refusing any type of chemical
test the same, but the U.S. Supreme Court has drawn a key
constitutional distinction between a warrantless test of a
person's breath and a warrantless test of her blood.4 Whereas a
breath test implicates no "significant privacy concerns"——
because exhaled air "is not part of [one's] body" and the test's
"physical intrusion is almost negligible"——warrantless blood
draws are "another matter." Birchfield, 579 U.S. at 461–63,
474–76. Blood draws are "significantly more intrusive" than a
breath test in that they "'require piercing the skin' and
extract a part of the subject's body." Id. at 463–64 (quoting
Skinner v. Ry. Lab. Execs.' Ass'n, 489 U.S. 602, 625 (1989)). Those differences are why, after an OWI arrest, a warrantless
breath test is permissible as a reasonable search incident to an
arrest but a warrantless blood draw is not. Id. at 474–76; see
also Missouri v. McNeely, 569 U.S. 141, 152–53 (2013).
Accordingly, for blood draws, the police must get a warrant, and
Wisconsin Stat. § 343.305(2) also applies to chemical 4
tests of a person's urine. Neither the U.S. Supreme Court nor this court has addressed the Fourth Amendment implications of a urine test, and we do not need to do so here since Forrett's revocation was based on his refusing a blood test.
7 No. 2019AP1850-CR
when they do not have one, "a person has a constitutional right
to refuse" the request. See State v. Prado, 2021 WI 64, ¶47,
397 Wis. 2d 719, 960 N.W.2d 869; see also Birchfield, 579 U.S.
at 474–75. It therefore follows that a state cannot threaten or
"impose criminal penalties on th[at] refusal," Birchfield, 579
U.S. at 477, because "a [s]tate may not impose a penalty upon
those who exercise a right guaranteed by the Constitution,"
Harman v. Forssenius, 380 U.S. 528, 540 (1965). See also
Dalton, 383 Wis. 2d 147, ¶66; Buckner v. State, 56 Wis. 2d 539,
550, 202 Wis. 2d 406 (1972).5
¶9 Such unconstitutional criminal penalties can take
several forms. It could be that a person is criminally charged
specifically for refusing a warrantless blood draw. See
Birchfield, 579 U.S. at 478. Or, as was the case in Dalton, a
person could be subjected to a longer sentence "for the sole
reason that he refused to submit to a [warrantless] blood test."
383 Wis. 2d 147, ¶¶59–61, 67 (explaining that a "lengthier jail
sentence is certainly a criminal penalty"); see also Birchfield, 579 U.S. at 476–78. These two examples are illustrative but not
exhaustive: No matter the form the criminal penalty takes, the
state cannot impose such a penalty on a person because she
exercised her Fourth Amendment right. See Harman, 380 U.S. at
540; Buckner, 56 Wis. 2d at 550.
5 There is no constitutional issue, however, when a state imposes only "civil penalties," such as revoking a person's operating privileges, for refusing a warrantless blood draw. See Birchfield, 579 U.S. at 476–77 (adding that imposing "evidentiary consequences" is also permissible).
8 No. 2019AP1850-CR
B
¶10 In both Birchfield and Dalton, the refusal and the
related criminal penalties arose in the same case. Here,
however, Forrett's refusal and the criminal penalties for that
refusal arise in different cases. The question then, is whether
it is unconstitutional under Birchfield and Dalton to increase
the criminal penalty for a separate, subsequent OWI because, in
a prior instance, the driver refused a warrantless blood draw.
¶11 We conclude that it is. Neither Birchfield nor Dalton
limited its holding to refusals related to the instant OWI
charge. Both cases rested on the idea that the state cannot
criminalize the exercise of a constitutional right, and we see
no reason why that rationale does not apply equally when the
criminal penalty is imposed in a later case. See Birchfield,
579 U.S. at 476–78; Dalton, 383 Wis. 2d 147, ¶¶61–66; see also,
e.g., County of Kenosha v. C & S Mgmnt., Inc., 223 Wis. 2d 373,
400–01, 588 N.W.2d 236 (1999) (explaining that a person may not
be prosecuted in retaliation for exercising her constitutional rights). After all, delayed criminal penalties are still
criminal penalties. Thus, reading Birchfield and Dalton
together with Harman, Buckner, and the Fourth Amendment, it is
unconstitutional in all circumstances to threaten criminal
penalties for refusing to submit to a warrantless blood draw.
Yet that is what the OWI statutes do by counting revocations as
offenses under Wis. Stat. § 343.307(1). See generally Wis.
Stat. § 346.65(2)(am).
9 No. 2019AP1850-CR
¶12 To be sure, there are limited instances in which
counting a prior revocation as an offense will have no immediate
effect. For example, a person who has four prior OWI
convictions and one revocation and is then convicted of another
OWI is subject to the same criminal penalties as a person with
the same number of prior convictions but no revocations. See
Wis. Stat. § 346.65(2)(am)5. (imposing the same minimum
punishment for a fifth and sixth offense). Although the
criminal penalty is not increased in such a case, the statutes
still count revocations as offenses for penalty purposes.
Therefore there is still at least a threat of an increased
criminal penalty in a subsequent case. And that threat——just
like its realization——is unconstitutional. See Birchfield, 579
U.S. at 477–78.
¶13 There is no constitutional issue, however, when the
revocation and the ensuing conviction "arise out of the same
incident or occurrence." In that case, the revocation and
conviction "shall be counted as one" offense, so there is no criminal penalty for the revocation. See Wis. Stat.
§ 346.65(2)(am)2.–7; cf. Dalton, 383 Wis. 2d 147, ¶¶60–67. In
Forrett's case, however, his 1996 refusal resulted only in a
revocation, not an OWI conviction. There is therefore no
underlying criminal conduct from 1996 for which Forrett is being
criminally punished. Instead, he is being criminally punished
only for exercising his Fourth Amendment right to be free from
unreasonable searches. That is unconstitutional. See Buckner, 56 Wis. 2d at 550; Birchfield, 579 U.S. at 477–78. 10 No. 2019AP1850-CR
¶14 We therefore hold that the OWI statutes are facially
unconstitutional to the extent they count a prior, stand-alone
revocation resulting from a refusal to submit to a warrantless
blood draw as an offense for the purpose of increasing the
C
¶15 The State argues that there is no difference between
the OWI statutes' graduated-penalty scheme and any other statute
that imposes heightened penalties on repeat offenders, pointing
out that both this court and the U.S. Supreme Court have upheld
such statutes as constitutional. See, e.g., Ingalls v. State,
48 Wis. 647, 658, 4 N.W. 785 (1880) ("The increased severity of
the punishment for the subsequent offence is not a punishment of
the person for the first offence a second time, but a severer
punishment for the second offence."); United States v.
Rodriguez, 553 U.S. 377, 386 (2008) (finding no double-jeopardy
issue when a defendant receives a higher sentence under a recidivism statute because "100% of the punishment is for the
offense of conviction"). Applying the rationale of Ingalls and
Rodriguez to the OWI context, the State asserts that the
graduated-penalty scheme is constitutional because it imposes no
direct criminal punishment on the exercise of a constitutional
right; it only considers that conduct for the purpose of
increasing the punishment for a subsequent crime. Thus, in the
State's view, Forrett was not criminally punished for refusing a
11 No. 2019AP1850-CR
warrantless blood draw in 1996; he was punished only for
violating the OWI statutes a seventh time.
¶16 We reject that argument for the same reasons we
rejected the State's similar argument in Dalton. See 383
Wis. 2d 147, ¶65. The repeat-offender analogy fails because, in
cases like Ingalls and Rodriguez, the initial conduct was not
constitutionally protected. It is therefore permissible to
punish a third-time bank robber more harshly than a first-time
offender because there is no constitutional right to rob a bank.
Likewise, it is constitutional to punish a person more harshly
for her third OWI conviction than for her first because no one
has a constitutional right to drive while intoxicated. But a
person has a constitutional right to refuse a warrantless blood
draw, so that refusal cannot be treated as an offense for the
purposes of increasing the criminal penalty for a subsequent
offense. See Dalton, 383 Wis. 2d 147, ¶66; Buckner, 56 Wis. 2d
at 550.6
¶17 The State also rehashes another argument we rejected in Dalton: that it is permissible for the State to use a prior
refusal to submit to a warrantless blood draw as the reason for
an increased criminal penalty so long as the penalty is not
assessed directly on the refusal. See 383 Wis. 2d 147, ¶63.
This supposed distinction makes no difference——both achieve the
6 The State also relies on Nichols v. United States, 511 U.S. 738 (1994), but that reliance is misplaced because Nichols involved no argument that the defendant was being punished for exercising a constitutional right, which is the basis for Forrett's claim under Birchfield and Dalton.
12 No. 2019AP1850-CR
same unconstitutional result. See id. ("[T]he fact that refusal
is not a stand-alone crime does not alter our analysis.");
Birchfield, 579 U.S. at 476–78; see also Commonwealth v.
Monarch, 200 A.3d 51, 57 (Pa. 2019) ("Birchfield contemplated
that the decision would apply not only to separate criminal
offenses but also to enhanced sentencing . . . that might arise
from refusal."). Whether the criminal punishment is immediate
or delayed, the OWI statutes impermissibly allow the State to
punish more severely an OWI offender who refused a warrantless
blood draw "solely because he availed himself of one of his
constitutional rights." See Buckner, 56 Wis. 2d at 550; see
also Commonwealth v. McCarthy, 628 S.W.3d 18, 33 (Ky. 2021)
(holding that a Kentucky statute was incompatible with
Birchfield because it "was absolutely clear that the sentence
[for subsequent DUI convictions] will be higher . . . due to the
refusal").
D
¶18 Consistent with our analysis above, we agree with the
court of appeals that Forrett cannot be charged with a seventh-
offense OWI because one of his six prior "offenses" is a
revocation for refusing to submit to a warrantless blood draw.
But for his 1996 refusal, Forrett's current OWI conviction would
be his sixth, for which he could be sentenced to no more than
five years of initial confinement. See Wis. Stat.
§§ 346.65(2)(am)5., 973.01(2)(b)7. Instead, he was convicted of his seventh OWI offense and was sentenced to six years of
13 No. 2019AP1850-CR
initial confinement. See Wis. Stat. §§ 346.65(2)(am)6.,
973.01(2)(b)6m. Imposing such heightened criminal penalties
based upon a person's prior refusal to submit to a warrantless
blood draw is unconstitutional under Birchfield and Dalton. See
Birchfield, 579 U.S. at 476–78; Dalton, 383 Wis. 2d 147, ¶¶60–
67.
¶19 As for the remedy, however, we reach a different
conclusion than the court of appeals. The court of appeals
commuted Forrett's conviction to OWI as a sixth offense and
remanded the cause for resentencing. Under the terms of the
plea agreement, however, Forrett agreed to plead to a seventh-
offense OWI (a Class F felony) in exchange for the State
dismissing his other charges and recommending substantial prison
time consistent with that conviction. But, for the reasons
discussed above, Forrett could have been convicted only of a
Class G felony, which entails substantially lesser criminal
penalties than a Class F felony. That alters the basis for the
bargain struck by Forrett and the State in such a way that the plea agreement cannot be enforced. See State v. Tourville, 2016
WI 17, ¶25, 367 Wis. 2d 285, 876 N.W.2d 735 (explaining that
plea agreements are "rooted in contract law," which "demands
that each party should receive the benefit of its bargain")
(quoting another source). On remand, then, both the State and
Forrett should be given the opportunity to consider their next
steps. See id. ("While the government must be held to the
promises it made, it will not be bound to those it did not make.") (quoting another source); see also State v. Briggs, 218 14 No. 2019AP1850-CR
Wis. 2d 61, 69–74, 579 N.W.2d 783 (Ct. App. 1998) (reasoning
that vacating one of several convictions obtained by plea
agreement required vacating the entire plea agreement).
IV
¶20 In conclusion, we affirm the court of appeals with the
modification above regarding the remedy. We hold that Wis.
Stat. §§ 343.307(1) and 346.65(2)(am) are unconstitutional to
the extent that they count prior revocations resulting solely
from a person's refusal to submit to a warrantless blood draw as
offenses for the purpose of increasing the criminal penalty. We
remand the cause to the circuit court with instructions to
vacate the judgment of conviction and conduct further
proceedings consistent with this decision.
By the Court.—The court of appeals' decision is affirmed as
modified, and the cause remanded.
15 No. 2019AP1850-CR.bh
¶21 BRIAN HAGEDORN, J. (dissenting). The majority
declares Wisconsin's escalating OWI penalty scheme
unconstitutional when counting revocations based on the refusal
to submit to a warrantless blood test. This conclusion,
however, is premised entirely on the notion that the later OWI
penalty enhancer constitutes criminal punishment for the
earlier, unrelated refusal. Because that is not the law, I
respectfully dissent.
¶22 In Birchfield v. North Dakota, the Supreme Court
considered several questions related to implied consent laws.
579 U.S. 438, 450-54 (2016). The issues focused on the
lawfulness of various searches under the Fourth Amendment, and
whether a defendant could be criminally or civilly sanctioned
for refusing to consent to a search. Id. at 444. Pertinent
here, the Court analyzed whether North Dakota's implied consent
law could serve as a basis for justifying a warrantless blood
test (a search) when criminal penalties attached to the refusal.
Id. at 451. The Court held it could not. Id. at 476-77. It ruled that Birchfield, who was criminally prosecuted under North
Dakota's implied consent law, "was threatened with an unlawful
search and that the judgment affirming his conviction must be
reversed." Id. at 477-78. In reaching this conclusion, the
Court distinguished implied consent laws that impose civil
penalties for refusal (which are lawful) from those that impose
criminal penalties (which are not). Id. at 476-77.
¶23 Unlike North Dakota, Wisconsin imposes no criminal penalties for refusing to submit to a warrantless blood test.
1 No. 2019AP1850-CR.bh
Our law establishes only civil consequences. See Wis. Stat.
§ 343.305(10). In 1996, Scott Forrett's operating privileges
were temporarily revoked——a civil penalty——for refusing to
submit to a warrantless blood test. According to Birchfield,
revoking Forrett's operating privileges was perfectly legal
because no criminal punishment was imposed for his refusal. See
579 U.S. at 476-77. That should end the matter. But the
majority holds otherwise, concluding Forrett's sentence for his
most recent OWI punishes him anew for conduct that occurred 26
years ago. This has never been the law.
¶24 It is well-established that a later criminal
prosecution that takes into account prior conduct——criminal or
not——does not amount to new criminal punishment for the prior
conduct. We set forth this proposition in 1880 when we
concluded that punishing persons longer for repeat offenses did
not violate constitutional double jeopardy protections. Ingalls
v. State, 48 Wis. 647, 658, 4 N.W. 785 (1880). We explained
that considering prior conduct in meting out punishment for a new crime "is not a punishment of the person for the first
offense a second time, but a severer punishment for the second
offense." Id. The United States Supreme Court is in accord:
"When a defendant is given a higher sentence under a recidivism
statute——or for that matter, when a sentencing judge, under a
guidelines regime or a discretionary sentencing system,
increases a sentence based on the defendant's criminal history——
100% of the punishment is for the offense of conviction." United States v. Rodriquez, 553 U.S. 377, 386 (2008); see also
2 No. 2019AP1850-CR.bh
Monge v. California, 524 U.S. 721, 728 (1998) ("An enhanced
sentence imposed on a persistent offender thus 'is not to be
viewed as either a new jeopardy or additional penalty for the
earlier crimes' but as 'a stiffened penalty for the latest
crime, which is considered to be an aggravated offense because a
repetitive one.'" (quoting another source)).
¶25 These principles apply no less to Wisconsin's
escalating penalty scheme for OWIs. See State v. McAllister,
107 Wis. 2d 532, 535, 319 N.W.2d 865 (1982) (explaining that the
OWI "graduated penalty structure is nothing more than a penalty
enhancer similar to a repeater statute"). Wisconsin counts
prior OWI offenses, along with revocations and suspensions in
determining the penalty for a new OWI offense. Wis. Stat.
§ 346.65(2)(am). A first-offense OWI is a civil, not criminal,
violation yet it counts in the OWI escalating penalty scheme.
Id. Suspensions and revocations, which also count, can be
caused by any number of violations, including excessive
speeding. See Wis. Stat. § 343.30(1n). ¶26 OWI punishments are therefore increased based on prior
conduct of all kinds, civil and criminal alike. And under an
unbroken and unchallenged line of precedent, the punishment for
the current OWI penalizes only the crime of conviction——not any
of the past conduct that may serve as an enhancer. See State v.
Schuman, 186 Wis. 2d 213, 218, 520 N.W.2d 107 (Ct. App. 1994)
(holding an OWI penalty enhancer "is not an additional,
retroactive, penalty" for the prior conduct, "but a stiffer penalty for the latest crime"). As the United States Supreme
3 No. 2019AP1850-CR.bh
Court has said, "Enhancement statutes, whether in the nature of
criminal history provisions such as those contained in the
Sentencing Guidelines, or recidivist statutes that are
commonplace in state criminal laws, do not change the penalty
for the earlier conviction." Nichols v. United States, 511
U.S. 738, 747 (1994).
¶27 Applying this concept here is straightforward.
Forrett's present OWI prosecution punishes him only for his new
offense. Counting prior offenses in calculating his sentence
does not criminally punish Forrett for any of his prior conduct.
This is true when counting prior OWI convictions of a civil or
criminal nature. And it is true of revocations, whether for
excessive speeding or for refusing to submit to a blood test.
Thus, under binding law, the State is not criminally punishing
Forrett for refusing a blood test back in 1996; rather, it is
simply punishing him more harshly for his newest OWI conviction.
Nothing in Birchfield casts any doubt on these principles.
Nothing in Birchfield calls into question the constitutionality of Wisconsin's OWI escalating penalty scheme.
¶28 The court of appeals and the majority rely heavily on
State v. Dalton to reach a contrary result. 2018 WI 85, 383
Wis. 2d 147, 914 N.W.2d 120. In Dalton, the circuit court
imposed a longer sentence because Dalton refused a blood test in
the same incident that lead to his OWI conviction. Id., ¶¶19-
21. This court concluded that Dalton suffered criminal
punishment in violation of Birchfield as a result of his refusal. Id., ¶¶61, 67. Dalton's facts were much closer to
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Birchfield, but Dalton's reasoning should not be extended. The
majority seems to interpret Dalton as prohibiting any criminal
penalty enhancements that are connected to a prior refusal to
consent to a warrantless blood test. If this is what Dalton
stands for, it was wrong. By expanding Dalton beyond the
circumstances of the immediate OWI conviction, the majority
adopts a legal rule that is unrecognizable from its supposed
roots in Birchfield and irreconcilable with more than a century
of precedent on penalty enhancement statutes.
¶29 The majority's conclusion in this case takes us far
afield from the law we are supposed to apply. Consistent with
Birchfield, Wisconsin imposes only civil penalties for refusing
to submit to a warrantless blood test. Yet today, the court
decides that Wisconsin's OWI graduated-penalty scheme is
unconstitutional when it counts prior revocations for refusing
to submit to a blood test. This holding has nothing to do with
Birchfield. It is a classic example of pulling a line from an
opinion and wrongly applying it to an entirely different sort of case and claim. The majority misapplies Supreme Court precedent
and in so doing, overrides the legislature's decision to count
prior revocations toward increased OWI penalties. I
¶30 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER and Justice PATIENCE DRAKE ROGGENSACK join
this dissent.
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