State v. Scott W. Forrett

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.

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 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).

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 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

criminal penalty.

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

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 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

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 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
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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.

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 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.

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 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

respectfully dissent.

¶30 I am authorized to state that Chief Justice ANNETTE

KINGSLAND ZIEGLER and Justice PATIENCE DRAKE ROGGENSACK join

this dissent.

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