COA: Criminal charges for violating conditions imposed as a result of refusing a warrantless blood draw are constitutional.
State v. Nicholas L. Sparby-Duncan,2024AP1012-CR, 1/6/26, District III (recommended for publication); case activity
In an opinion recommended for publication, the COA affirmed the circuit court’s order denying Nicholas Sparby-Duncan’s motion to dismiss charges for failing to install an ignition interlock device (IID) and operating a motor vehicle with a prohibited alcohol concentration (PAC) above .02. The COA found that the IID and PAC charges did not impose criminal penalties for Sparby-Duncan previously refusing to submit to a warrantless blood draw, although he was required to install an IID – which subjected him to the .02 PAC — as a result of his 2008 conviction for refusing.
In 2016, SCOTUS held in Birchfield that a breath test, but not a blood test, may be administered as a search incident to arrest for drunk driving. (579 U.S. at 476). SCOTUS therefore concluded a motorist “cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” (Id. at 477).
Two years later in Dalton, SCOW interpreted Birchfield to prevent a sentencing court from imposing a more severe penalty on a defendant convicted of OWI because he refused to submit to a warrantless blood draw. (Dalton, ¶ 67). SCOW vacated the defendant’s sentence because the circuit court stated his refusal is “going to result in a higher sentence for you.” (Id., ¶ 21). The COA observed that Dalton “went beyond” Birchfield by recognizing a constitutional right to refuse a warrantless blood draw. (¶ 21).
In Forrett, SCOW held that, under Birchfield and Dalton, the State may not increase the criminal penalty for a separate, subsequent OWI because the driver refused a warrantless blood draw in a prior case. (Forrett, ¶ 10). Refusing a blood draw therefore cannot count as a prior offense for Wisconsin’s graduated penalty scheme for OWI charges. SCOW remarked “it is unconstitutional in all circumstances to threaten criminal penalties for refusing to submit to a warrantless blood draw,” but there “is no constitutional issue . . . when a state imposes only civil penalties, such as revoking a person’s operating privileges, for refusing a warrantless blood draw.” (Id., ¶ 8 n.5).
Sparby-Duncan was convicted in 2008 for refusing a blood draw and in 2013 for operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood. Because his 2013 conviction counted as a second OWI-related offense, he was ordered to install an IID for twelve months. (¶ 5). And the IID requirement subjected him to a .02 PAC. (¶¶ 4-5).
In his motion to dismiss, Sparby-Duncan argued that the IID and PAC charges are “inextricably intertwined with his 2008 refusal because, absent that refusal, the sentencing judge in the 2013 case could not have imposed an IID order, and absent the IID order, he would not have been subject to a 0.02 PAC.” (¶ 7). His charges for failing to install an IID and operating a motor vehicle with a PAC over .02, he asserted, were therefore unconstitutional under Birchfield, Dalton, and Forrett.
The COA affirmed the circuit court’s order denying the motion to dismiss because the “current charges against Sparby-Duncan threaten him with criminal penalties for violating the IID order and driving with a PAC over 0.02, not for his 2008 refusal.” (¶ 28). The Court determined that Birchfield, Dalton, and Forrett do not prohibit “the government from imposing criminal penalties on an individual for his or her violation of civil consequences that were imposed as a result of a refusal to submit to a warrantless blood draw.” (¶ 28).
Although Sparby-Duncan cited Forrett’s holding that it is unconstitutional in all circumstances to threaten criminal penalties for refusing to submit to a warrantless blood draw, the COA concluded the charges against Sparby-Duncan do not impose criminal penalties for his 2008 refusal, but for his subsequent “acts of failing to install the IID that was ordered as a result of his 2008 refusal and driving with a PAC.” (¶ 33).