Appeals court examines consequences of blood test refusal in intoxicated driving cases

By Alexandria Staubach
 
The Wisconsin Court of Appeals shut down a Dunn County man’s argument that new intoxicated-driving charges must be dismissed because they relate back to his exercise of his constitutionally protected right to refuse a warrantless blood draw.

Gill

Judge Gregory Gill wrote for the District 3 panel, joined by Presiding Judge Lisa Stark and Judge Thomas Hruz.
 
Nicholas Sparby-Duncan was charged with failing to install an ignition interlock device (IID) in his vehicle and operating a motor vehicle with a prohibited alcohol concentration (PAC), both as a second offense. 
 
Sparby-Duncan was, due to prior actions, required to have an IID in his vehicle and prohibited from driving with a blood alcohol concentration above 0.02.

An IID requires a driver to pass a breath test before the vehicle can be operated.
 
Sparby-Duncan's restrictions stemmed from his 2008 refusal to submit to a warrantless blood draw and his 2013 conviction for operating a motor vehicle with a detectable amount of a restricted controlled substance (RSC). Because of the 2008 refusal, the sentencing judge in 2013 ordered Sparby-Duncan to install an IID in his vehicle. By statute, as a result of the IID order, Sparby-Duncan was subject to a maximum blood alcohol concentration of 0.02, rather than 0.08, for operating a motor vehicle.
 
Sparby-Duncan would not have been subject to the IID order in 2013 or the 0.02 PAC level absent his 2008 refusal to submit to a warrantless blood draw.
 
Sparby-Duncan argued to the Court of Appeals that because he had a constitutional right to refuse the blood test in 2008, the second-offense charges were unconstitutional—they would not apply but for his exercise of a constitutional right.
 
The State called the nexus between the prior refusal and the new charges “indirect at best.”  
 
Wisconsin law and U.S. Supreme Court law prohibit criminal sanctions for refusal to submit to a warrantless blood draw, but they permit civil penalties.
 
Rejecting Sparby-Duncan’s argument that he faced criminal sanctions because he would not be subject to the IID order or a 0.02 PAC but for his 2008 refusal, the Court of Appeals wrote: “Be that as it may, the State could not have charged Sparby-Duncan with the IID and PAC counts in this case but for his choice—made long after the refusal—to forgo installing the IID and to drive with a blood alcohol concentration above 0.02.”
 
“The State is not seeking to treat Sparby-Duncan’s 2008 refusal as an offense for the purposes of increasing the criminal penalty for a subsequent offense,” the court said. Rather, the state is “seeking to impose criminal penalties on Sparby-Duncan for his violation of the IID order—a civil consequence of his refusal—and his operation of a vehicle with a PAC.”
 
Put another way, the new charges would impose criminal penalties on Sparby-Duncan not for refusing to submit to the blood draw in 2008, but for violating the permissible IID order and blood alcohol concentration limit.

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