Certain refusals can’t count as penalty enhancers

On June 3, 2022, the Supreme Court of Wisconsin determined:

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.

The following blog post may contain outdated law and is focused on refusals counting as prior offenses prior to June 3, 2022.  Please review State v. Forrett for a discussion regarding this issue.

Court of Appeals says warrantless blood test refusals can’t count as penalty enhancers

A recent Wisconsin Court of Appeals decision marked an important development in the state’s drunk driving laws.  In State v. Forrett the court declared unconstitutional a law that allowed certain refusals to count as prior offenses when counting OWI convictions.  Those prior offenses increase the penalty for subsequent OWI, PAC, or DUI charges.

For example, assume you have one refusal on your record.  If you are arrested and charged with drunk driving, you’ll face an OWI 2nd charge.  Your first offense was the refusal.  While the fallout from this decision is still settling, one thing is clear: the law regarding prior offenses is changing.

Whether you’re charged with your first offense OWI or your tenth, contact the award winning drunk driving attorneys at Van Severen Law Office immediately.  We fight drunk driving cases at all levels, whether that’s challenging illegal police conduct through pre-trial motions, fighting for you at trial, or anything in between.

Most importantly, remember that drunk driving law can be incredibly complex.  To win cases, your attorney must be on top of all those complexities.  At Van Severen Law Office you’ll meet some of the best young criminal defense attorneys in Wisconsin.  All of our attorneys are ready to fight for you, and all of them stay current with the constantly-changing nature of drunk driving law.  Contact us at (414) 270-0202 and let’s get started.


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Implied consent – what is it?

Section 343.305(2) of the Wisconsin Statutes indicates that:

Any person who is on duty time with respect to a commercial motor vehicle or drives or operates a motor vehicle upon a public highway … is deemed to have given consent to one or more tests of his or her breath, blood, or urine, for the purpose of determining the presence or quantity of [alcohol or a controlled substance] … when requested to do so by a law enforcement officer [in connection with an OWI investigation or arrest] or when required to do so [in connection with an accident involving substantial bodily harm and alcohol or other intoxicants].

In other words, Wisconsin drivers consent to the testing of their blood, breath, or urine in specific circumstances.  The purpose of these tests is to determine whether the driver was operating his vehicle under the influence of a controlled substance or prohibited amount of alcohol.

When a driver refuses to provide a sample, he’s in violation of this statute.  At that point, the government will likely charge him with a refusal.  A refusal is not a criminal offense, but certainly carries significant penalties compared to an OWI-first.  And most importantly a refusal counts (with this development, as long as it isn’t a blood test) as a “prior offense” when counting future OWIs.  The latter point is certainly why this blog post is important.

State. v. Forrett

In April 2017 police arrested Forrett for a 7th offense OWI.  Ultimately prosecutors charged Forrett and he pled guilty to the offense and received an 11 year prison sentence.  Forrett had six prior offenses for counting purposes.  One of those six prior offenses was a refusal.  After sentencing, Forrett filed a postconviction motion challenging the use of that refusal as a prior offense to increase the OWI charge from 6th to 7th offense.  The circuit court denied Forrett’s motion.  He appealed the decision to the Wisconsin Court of Appeals.

Forrett argued on appeal that counting his 1996 refusal to increase the criminal penalty applicable to his latest OWI violated his Fourth Amendment right against an unreasonable search under Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) and State v. Dalton, 2018 WI 85, 383 Wis. 2d 147, 914 N.W.2d 120.  The Fourth Amendment protects individuals from “unreasonable searches and seizures” by the government.  Birchfield is a Supreme Court of the United States case in which the Court held that a refusal to submit to a blood draw can be the basis for a civil penalty (a refusal) but cannot be used as a basis for separate criminal charges.  The Dalton case was a Wisconsin case adopting the principles discussed in Birchfield.


The court’s decision was simple:

In sum, we are bound by Dalton, in which our supreme court concluded that imposing a lengthier sentence because a person refused a warrantless blood test is improper under Birchfield. … An increased penalty for the warrantless blood draw refusal revocation is an increased penalty—regardless whether it takes place in the same proceeding or a later proceeding, it impermissibly burdens or penalizes a defendant’s Fourth Amendment right to be free from an unreasonable warrantless search. Thus, revocations for warrantless blood draws, as set forth in WIS. STAT. §§ 343.307(1)(f) and 343.305(10), cannot be included in the escalating penalty structure of WIS. STAT. § 346.65(2)(am).

A man drinks alcohol while driving.
Blood test refusals can’t count as a prior offense for drunk driving counting purposes.  Contact our drunk driving defense experts at (414) 270-0202 for immediate help.

What happens now that blood-based refusals don’t count as prior offenses?

First, it’s important to point out that this decision is very specific.  It only applies to refusals of blood tests.  If your refusal was based on a test of your breath or urine, it still counts as a prior offense.  The reason for this appears to be the fact that a blood test, as opposed to a more passive test of your breath or urine, is a significant intrusion on an individual’s liberty.  There is no reason to expect the law to develop and to include breath and urine.

Secondly, the government will certainly find ways around this law.  As previously mentioned, the Forrett decision only applies to blood tests.  It’s certainly conceivable that law enforcement begins using breath and urine tests more frequently.  If you refuse either of these tests, it still counts as a prior offense.

Finally, law enforcement might not rely on refusals as much as they do now.  If you refuse for your first offense, frequently law enforcement will simply provide you citations for both issues.  But for second or subsequent offenses, frequently law enforcement personnel contact the county prosecutor and obtain a warrant for your blood or breath.  It’s certainly conceivable that law enforcement personnel begin seeking warrants more frequently for first-offense cases.  Importantly, the Forrett decision does not impact warrants.

Contact our drunk driving defense attorneys immediately for representation

If you face charges for drunk driving, contact our criminal defense attorneys immediately.  We monitor phones 24/7 and will always have someone on the line for you.

We believe that the cheapest attorney in town usually isn’t the best.  If your focus is on hiring one of the best drunk driving attorneys in Wisconsin, contact us today.  We can help.  (414) 270-0202

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