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Refusing Blood Test No Longer a Prior Wisconsin OWI Offense

In a 4-3 decision, the majority of the Wisconsin Supreme Court ruled on June 3, 2022, that an aspect of the graduated-penalty scheme in multiple OWIs is unconstitutional.

OWI (Operating While Intoxicated) law allows for stiffer penalties as a defendant accumulates multiple OWI offenses in Wisconsin. The overall concept is not at issue. The practice of counting a license revocation for refusing a warrantless blood draw as a prior offense is unconstitutional, according to the court majority.

The Defendant Was Arrested for OWI in 2017

The case that the Wisconsin Supreme Court was considering had its origins in 2017. Scott Forrett was arrested and charged with what would have been his sixth OWI. But he also had his driver’s license revoked in 1996 for refusing a warrantless blood draw. The revocation counted as another prior despite the fact he was never convicted of OWI in that case.

The previous OWIs and the license revocation led prosecutors to charge Forrett with a seventh drunk driving charge. He was then charged with a Class F felony, which carries more severe penalties than the Class G he would have been charged for six OWIs. In a plea deal that dismissed drug charges, he agreed to plead guilty to the seventh offense and was sentenced to six years in confinement followed by five years of extended supervision.

U.S. Supreme Court OWI Ruling Impacted Wisconsin Decision

After his conviction, Forrett challenged the constitutionality of counting the 1996 revocation. The circuit court dismissed the motion but the Wisconsin District II Court of Appeals reversed that decision in 2021. The decision was based in part on the U.S. Supreme Court decision in Birchfield v. North Dakota, which says police can conduct warrantless breath tests, but not blood tests because of they are more invasive. The appeals court then ordered that this conviction be commuted to a sixth offense and that he be resentenced accordingly.

The state’s Supreme Court invoked the same Birchfield decision. Instead of commuting his sentence, the high court instructed the state to vacate his conviction altogether and for the state and Forrett to consider the next steps.

This case is not the first time the Wisconsin Supreme Court has ruled on OWI blood tests. In June 2021, the high court unanimously ruled that a law allowing blood to be drawn from incapacitated drivers is unconstitutional. Like the June 2022 ruling, the court said the law violated a person’s Fourth Amendment rights protecting them against unconstitutional search and seizure.

Wisconsin’s Graduated-Penalty Scheme for OWI

Let’s be clear that the supreme court is not suggesting that drivers shouldn’t face increasingly severe consequences with multiple OWIs. The ruling only applies to counting prior license revocations toward increased OWI penalties.

The first two OWIs typically result in a fine and license revocation of six to nine months, as well as other penalties. If the second offense is within 10 years of the first, a guilty driver can be sentenced to up to six months in jail with longer license revocation.

An OWI becomes a felony at the fourth offense:

  • Fourth Offense: Class H Felony
  • Fifth or Sixth Offense: Class G Felony
  • Seventh, Eighth, or Ninth Offense: Class F Felony
  • Tenth or Greater Offense: Class E Felony

Any OWI causing great bodily harm is a Class F felony with up to six years in prison and other penalties. An OWI that takes the life of another person is a Class D felony, punishable by up 25 years in prison. If the homicide occurs in a subsequent OWI, the charges are elevated to Class C with up to 40 years in prison.

Repercussions of Refusing a Chemical Drug Test

The supreme court decision also does not impact the penalties for refusing a blood or other chemical test.

Consequences of refusing chemical drug tests include the following:

  • Driver’s license is revoked for one year
  • Ignition interlock device installed on the car for one year
  • 30-day waiting period before applying for an occupational license

Call on Experience for an OWI Arrest

Our team at the Law Offices of Christopher J. Cherella is available 24/7 to help you from the outset of your arrest. We have successfully used numerous defense strategies to help our clients avoid or minimize charges.

Contact us if you have been arrested or believe you are being investigated for a crime. Call (414) 882-8382 at any time on any day for OWI defense.