State v. Forrett

401 Wis.2d 678

974 N.W.2d 422

2022 WI 37

STATE of Wisconsin, Plaintiff-Respondent-Petitioner,

v.Scott William FORRETT, Defendant-Appellant.

No. 2019AP1850-CR

Supreme Court of Wisconsin.

Oral Argument: February 17, 2022

Opinion Filed: June 3, 2022

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.

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.

REBECCA FRANK DALLET, J.

¶1 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 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, 136 S.Ct. 2160, 195 L.Ed.2d 560 (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. §§ 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 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-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 lay 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, 136 S.Ct. 2160 (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 refuse a warrantless, unreasonable search. See Harman v. Forssenius, 380 U.S. 528, 540, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965) ; Buckner v. State, 56 Wis. 2d 539, 550, 202 N.W.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 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, 136 S.Ct. 2160. 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, 136 S.Ct. 2160 (quoting Skinner v. Ry. Lab. Execs.’ Ass'n, 489 U.S. 602, 625, 109 S.Ct. 1402, 103 L.Ed.2d 639 (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, 136 S.Ct. 2160 ; see also Missouri v. McNeely, 569 U.S. 141, 152–53, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). Accordingly, for blood draws, the police must get a warrant, and 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...