Bottom line: A defendant’s prior refusal of a warrantless blood draw can lead to civil consequences like an IID order, and criminal charges for violating those civil consequences do not violate the Fourth Amendment under Birchfield, Dalton, or Forrett.
A Wisconsin OWI defendant argued that his criminal charges for failing to install an ignition interlock device (IID) and driving with a prohibited alcohol concentration (PAC) violated his Fourth Amendment rights. The Court of Appeals, District III, rejected this as-applied constitutional challenge in State v. Sparby-Duncan, 2026 WI App 9. The court held that these charges penalized the defendant’s later conduct, not his earlier refusal of a warrantless blood draw.
Refusal of warrantless blood draw leads to IID order and new charges in Dunn County
In 2008, Nicholas Sparby-Duncan refused a warrantless blood draw during an OWI-related incident in Eau Claire County. That refusal counted as his first OWI-related conviction under Wis. Stat. sec. 343.307(1). Then, on December 17, 2013, Sparby-Duncan pled guilty to operating with a restricted controlled substance (RCS) in his blood. Because the 2008 refusal counted as a prior offense, the 2013 conviction was treated as a second offense. As part of his sentence, the court revoked his license and ordered him to install an IID for 12 months under Wis. Stat. sec. 343.301(1g).
After the Wisconsin Supreme Court decided State v. Forrett, 2022 WI 37, the State could no longer count the 2008 refusal as a prior offense for enhancing OWI penalties. So when Sparby-Duncan picked up new charges in January 2023 in Dunn County, the State charged his OWI and PAC counts as second offenses rather than third offenses. But the State still charged him with failure to install the IID and with operating with a PAC above 0.02. Because the IID order remained in place, Sparby-Duncan was subject to a 0.02 PAC threshold instead of the standard 0.08 under Wis. Stat. sec. 340.01(46m)(c). His blood alcohol concentration at the time was 0.078.
Sparby-Duncan moved to dismiss the IID and PAC charges. He argued those charges were unconstitutional as applied to him because they traced back to his 2008 refusal of a warrantless blood draw. The circuit court denied his motion, and he appealed.
Fourth Amendment challenge under Birchfield, Dalton, and Forrett
Sparby-Duncan built his Fourth Amendment challenge on three cases. In Birchfield v. North Dakota, 579 U.S. 438 (2016), the U.S. Supreme Court held that states cannot impose criminal penalties on someone who refuses a warrantless blood draw. But Birchfield explicitly approved civil penalties for such refusals. The Wisconsin Supreme Court expanded on Birchfield in State v. Dalton, 2018 WI 85, holding that a sentencing court violated the Fourth Amendment when it lengthened a jail sentence solely because the defendant refused a warrantless blood draw.
Then came Forrett. There, the Wisconsin Supreme Court held that counting a prior refusal of a warrantless blood draw as an offense to increase criminal penalties for a later OWI conviction was unconstitutional. The Forrett court declared it “unconstitutional in all circumstances to threaten criminal penalties for refusing to submit to a warrantless blood draw.” Sparby-Duncan seized on this language. He argued the IID and PAC charges were criminal penalties flowing from his 2008 refusal, regardless of the form those penalties took.
Court of Appeals finds charges sufficiently attenuated from the refusal
The Court of Appeals disagreed with Sparby-Duncan’s Fourth Amendment challenge. The court began by confirming that Birchfield allows civil penalties for refusing a warrantless blood draw. The IID order imposed in 2013 was exactly that: a civil consequence of the 2008 refusal. The State did not charge Sparby-Duncan for refusing the blood draw. Instead, the State charged him for failing to install the IID and for driving with a blood alcohol concentration above 0.02.
The court acknowledged Sparby-Duncan’s argument that he would never have faced these charges “but for” the 2008 refusal. Still, the court found the charges “sufficiently attenuated” from the refusal. Sparby-Duncan made independent choices after the refusal. He chose not to install the IID. He chose to drive with alcohol in his system. Those later decisions, not the 2008 refusal, formed the basis of the criminal charges.
Forrett did not help Sparby-Duncan either. In Forrett, the State tried to count the prior refusal itself as an offense to enhance a later OWI penalty. Here, the State did not treat the refusal as an offense. The State instead penalized Sparby-Duncan for violating a civil consequence of the refusal. The court found nothing in Birchfield, Dalton, or Forrett that prohibits criminal penalties for violating civil consequences of a warrantless blood draw refusal.
What this ruling means for OWI defendants in Wisconsin
This decision establishes an important boundary. Wisconsin courts will not extend Forrett to shield defendants from criminal charges that arise from violating civil consequences of a prior refusal. If a court lawfully imposed an IID order as a civil penalty for a warrantless blood draw refusal, a defendant who violates that order can still face criminal charges. The Fourth Amendment challenge under Birchfield applies to direct criminal penalties for the refusal itself, not to downstream consequences of violating court orders that flowed from the refusal.
For defendants with prior refusals who face IID or PAC charges, this ruling limits the scope of Forrett. While Forrett prevents the State from counting a prior refusal to enhance the penalty level of a new OWI offense, it does not prevent the State from enforcing IID orders or the lower PAC threshold that accompanies those orders.
Contact Van Severen Law Office
If you face OWI, PAC, or ignition interlock device charges in Wisconsin, the criminal defense attorneys at Van Severen Law Office handle these types of cases regularly. Fourth Amendment issues, as-applied constitutional challenges, and the evolving law under Birchfield, Dalton, and Forrett all affect how drunk driving and related cases proceed. Our attorneys work to protect your rights at every stage of a case. Call (414) 270-0202 for a free consultation.