Wisconsin’s escalating OWI penalty scheme counts a person’s refusal to consent to a blood draw as a basis for enhancing the penalty for future offenses. Is that scheme unconstitutional because it penalizes a defendant’s exercise of the Fourth Amendment right to be free from an warrantless search?
As our post on the decision explained, the court of appeals held that using a driver’s refusal to submit to a blood draw (as opposed to a breath test) to enhance OWI penalties violates the person’s right to be free of unreasonable searches by penalizing the exercise of that right under Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), and State v. Dalton, 2018 WI 85i, 383 Wis. 2d 147, 914 N.W.2d 120. Thus, the court held, those refusals can’t be counted as a prior revocation or conviction.
Predictably enough, the state doesn’t like this outcome. It claims in its PFR that using a refusal from a previous, completely separate incident is all fine and dandy because that doesn’t penalize the exercise of the defendant’s right to refuse the warrantless search, but only the subsequent repeat behavior. It argues Birchfield is different because it involved a criminal penalty imposed directly on the refusal to comply with implied consent laws and that Dalton is different because it involved using the refusal in that case as an aggravating sentencing factor. As initially beguiling as those arguments might sound, that the penalty for refusal is imposed directly or in the same case isn’t the problem; it’s that the act of refusal—the act of asserting one’s fourth amendment right to refuse—leads to greater punishment at all, whether immediately or later, that his the problem. We’ll soon see whether the supreme court can see through the state’s specious reasoning.