July 10, 2018 – A drunk driver will be resentenced now that the Wisconsin Supreme Court has ruled (4-3) that a judge improperly increased his sentence for refusing a warrantless blood draw. Three dissenters called on the U.S. Supreme Court for review.

In State v. Dalton, 2018 WI 85 (July 3, 2018), all justices agreed that police were justified in directing a warrantless blood draw on Patrick Dalton, based on exigent circumstances, but four justices said refusal could not be a basis for a stiffer sentence.

“[W]e conclude that exigent circumstances existed, permitting police to draw Dalton’s blood absent a warrant,” wrote Justice Ann Walsh Bradley for the majority. “Accordingly, his counsel was not ineffective for failing to file a meritless motion to suppress.”

“We further conclude that the circuit court violated Birchfield by explicitly subjecting Dalton to a more severe criminal penalty because he refused to provide a blood sample absent a warrant. Consequently, Dalton is entitled to resentencing.”

The majority was referring to Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), in which the U.S. Supreme Court ruled that it is impermissible to impose criminal penalties on someone who refuses a warrantless blood draw.

Chief Justice Patience Roggensack and Justice Annette Ziegler wrote dissenting opinions, joined by Justice Michael Gableman, concluding the majority misinterpreted Birchfield and the U.S. Supreme Court should consider granting review in this case.

That is, the dissent said the judge considered refusal in imposing the sentence but did not impose an extra criminal penalty for refusing the blood draw. “Birchfield has nothing to do with a circuit court’s sentencing discretion,” wrote Chief Justice Roggensack.

Crash, Blood Draw, Sentencing

In 2013, Dalton was driving at speeds reaching 100 mph in the Village of Richfield, in Washington County, when he crashed the car into a ditch. He and a passenger were injured, and he was ultimately helicoptered (flight-for-life) to a hospital in Milwaukee.

Sheriff’s deputies responded to the scene, where the passenger said Dalton had been drinking and driving. Dalton was on the roof of the car unconscious. Five deputies were on scene, joined by members of the Richfield Fire Department to keep the area safe.

One deputy ultimately left the scene to speak with the passenger at a hospital in Menomonee Falls. Another deputy drove to Milwaukee to see Dalton. Almost two hours after Dalton received emergency care, he regained consciousness and was arrested.

However, Dalton refused a blood draw. The deputy directed the nurse to draw Dalton’s blood anyway, believing exigent circumstances justified a warrantless draw. The blood draw revealed that Dalton’s blood alcohol level was three times the legal limit.

Dalton’s defense lawyer chose not to challenge the blood draw through a motion to suppress. Ultimately, Dalton entered no contest pleas to Operating While Intoxicated (OWI), second offense, in addition to other related charges.

At sentencing, the circuit court judge noted the severity of the offense and how Dalton could have killed himself, his passenger, or an innocent person while driving drunk at three times the legal limit and at speeds up to 100 mph. The judge also noted how Dalton berated deputies as they tried to help save his life.

But then the judge noted that drivers impliedly consent to blood draws or breath tests after arrest in Wisconsin, under statutory law. “And you were arrested, and you disregarded that, and you will be punished for that today,” the judge said. “You don't have the right not to consent. And that's going to result in a higher sentence for you.”

Majority Says Higher Sentence Violated Birchfield

All the justices agreed that Dalton’s lawyer did not perform deficiently in failing to move for suppression of the blood draw, because such a motion would have been meritless.

Exigent circumstances, including the risk that evidence could be destroyed, is an exception to the warrant requirement. While dissipation of alcohol in the blood does not create an exigent circumstance per se, it could depending on the circumstances.

In this case, the full court agreed that exigent circumstances justified the warrantless blood draw because that night was chaotic in Washington County. Police had to secure medical assistance, secure the crash scene, interview people, and another accident diverted four deputies. They did not have time to secure a warrant within three hours, the majority noted, and the deputy reasonably believed a blood draw was necessary.

“Given the surrounding circumstances, the dissipation of alcohol in Dalton’s blood and the rapidly closing three-hour window to accomplish a presumptively admissible and accurate blood draw, Deputy Stolz was presented with an exigent circumstance,” wrote Justice A.W. Bradley, noting Stolz reasonably believed evidence would be destroyed.

But Dalton also argued that the judge violated Birchfield’s holding by giving him a stiffer sentence because he refused the blood draw, which he had a right do. On that point, a four-justice majority agreed and concluded that Dalton is entitled to a new sentence.

In Birchfield, the majority noted, the U.S. Supreme Court said courts cannot impose criminal penalties for refusing a warrantless blood draw, which implicates the Fourth Amendment. “A lengthier sentence is certainly a criminal penalty,” wrote Justice A.W. Bradley, noting that Dalton’s judge clearly imposed a stiffer sentence, in part for refusal.

The judge said Dalton did not have a right to refuse and refusal was “going to result in a higher sentence.” In Wisconsin, drivers can refuse blood draws, but refusal results in a civil penalty. In this case, the majority said the judge imposed a criminal penalty.

The court gave Dalton “a longer sentence for the sole reason that he refused to submit to a blood test,” wrote Justice A.W. Bradley for the majority (including Justices Rebecca Bradley, Daniel Kelly, and Shirley Abrahamson). “This is a violation of Birchfield.”

Dissenters: Not a Criminal Penalty

Chief Justice Roggensack, in a dissenting opinion, said the majority “misunderstands the directive of Birchfield” and asked the U.S. Supreme Court to accept review of the case.

In Birchfield, the chief justice noted, the drunk driving defendant refused a blood draw and later pled guilty to a misdemeanor violation of North Dakota’s refusal statute.

Unlike the defendant in Birchfield, Roggensack explained, Dalton was not criminally penalized for refusing the blood draw because refusal results in civil penalties in Wisconsin. That is, he was not charged criminally for refusing to allow a blood draw.

“The majority opinion misleads the reader because it does not explain that Dalton did not receive a criminal penalty for refusing to submit to a blood draw,” the chief justice wrote. “[H]e received a criminal penalty because he had committed a second OWI.”

Chief Justice Roggensack said the judge, at sentencing, considered the refusal just as sentencing judges may consider other factors in determining a discretionary sentence.

“The [U.S.] Supreme Court should consider granting review herein to explain the Fourth Amendment parameters of Birchfield when state law penalties for withdrawing consent are civil and evidentiary and criminal penalties occur for recidivism,” she wrote.

Justice Ziegler wrote a separate dissent, concluding the majority opinion “seriously errs” because, as the chief justice noted, refusal in Wisconsin results in a civil penalty.

“Judges can and do consider a variety of factors when imposing sentence – including conduct that is not against the law at all (e.g., lack of remorse) – and the obstructive and prohibited behavior of refusal is but one proper consideration,” Justice Ziegler wrote.

“I join Chief Justice Roggensack’s call for the [U.S.] Supreme Court to assist the state courts with respect to this issue.” Justice Gableman joined both dissents.